GEO.  T. 

L,A\V 

AND  STATIONERS. 

7-4   -SAN'MOM  HTKKKT. 
PHILADKL.PHIA. 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


APPELLATE  PRACTICED 

Containing   the    Provisions   of  the 

Constitution   and   Statutes  and   the   Rules 

of  the  Supreme  and  Superior  Courts, 

and  the  Decisions  Thereon, 

WITH 

APPROPRIATE  FORMS  AND  SUGGESTED 
FORMS  OF  PRACTICE, 

ALSO 

THE    EQUITY    RULES. 


BY 

JAMES    MONAGHAN, 

FORMER    STATE    REPORTER,    AND    EDITOR    MONAGHAN'S    AITNUAL 
DIGEST  OF  DECISIONS. 


PHILADELPHIA : 

GEORGE  T.  BISEL  COMPANY 

Law  Publishers,   Booksellers  and  Importers 

1912 


T 

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\<\\1 


COPYRIGHT,  1912 
THE  GEORGE  T.  BISEL  Co. 


JUSTICES  OF  THE  SUPREME  COURT  OF  PENNSYLVANIA. 


HON.  D.  NEWLIN  FELL,  Chief  Justice. 

HON.  J.   HAY   BROWN, 

HON.  S.  LESLIE  MESTREZAT, 

HON.  WILLIAM  P.  POTTER, 

HON.  JOHN  P.  ELKIN, 

HON.  JOHN  STEWART, 

HON.  ROBERT  VON  MOSCHZISKER, 


Justices. 


JUDGES  OF  THE  SUPERIOR  COURT  OF  PENNSYLVANIA. 

HON.  CHARLES  E.  RICE,  President  Judge. 
HON.  WILLIAM  D.  PORTER, 
HON.  JOHN  J.  HENDERSON, 


HON.  THOMAS  A.  MORRISON, 
HON.  GEORGE  B.  ORLADY, 
HON.  JOHN  B.  HEAD, 
HON.  JAMES  A.  BEAVER, 


Judges. 


State  Reporter. 

WILLIAM  I.  SCHAFPEB,  Chester,  Pa. 

Assistant  State  Reporter. 

ALBERT  B.  WEIMER,  Philadelphia. 

Prothonotaries  of  the  Supreme  and  Superior  Courts. 

At  Philadelphia,  Hon.  JAMES  T.  MITCHELL;  ALFRED  B.  ALLEN, 

Esq.,  Deputy. 

At  Harrisburg,  WILLIAM  PEARSON,  Esq. 
At  Pittsburgh,  GEORGE  PEARSON,  Esq. 

Prothonotaries  of  Superior  Court. 

At  Williamsport,  BENJAMIN  S.  BENTLEY,  Esq. 
At  Scranton,  SAMUEL  H.  STEVENS,  Esq. 

State  Board  of  Law  Examiners:  For  names  and  addresses,  see  §20, 
note  (1),  pages  29  and  30. 

Secretary:  CHARLES  L.  MCKEEHAN,  Esq.,  321  Chestnut  St.,  Phila- 
delphia. 


ADDITIONS  AND  CORRECTIONS 


Assignments  of  Error  to  entering  or  refusing  judgment  for  want  of 
sufficient  affidavit  of  defense  (p.  525).  After  "rule,"  in  second  line,  add: 
''for  judgment."  Also  add  note  as  follows : 

[Where  rule  is  made  absolute  no  exception  is  necessary:  Brainerd  v. 
Davis,  21  Pa.  Super.  599,  1902.  See  also  §50,  note  (2);  Act  May  n,  1911 
(§162),] 

Constitutional  Questions.  When  an  appeal  is  allowed  from  the 
Superior  to  the  Supreme  Court  on  account  of  a  constitutional  or  analogous 
question,  under  Act  June  24,  1895,  P.  L.  212,  §§121,  124,  below,  the  hearing 
in  the  Supreme  Court  is  limited  to  the  question  upon  which  the  appeal 
is  allowed. 

Equity  Rules.  Although  not  properly  Appellate  Practice,  it  has  been 
thought  best  to  include  the  Equity  Rules  in  this  volume,  emanating  as  they 
do  from  the  Supreme  Court.  They  are  found  in  the  Appendix,  beginning 
at  page  582*. 

Rules  of  Court.  Supreme  Court  Rule  40,  and  Superior  Court  Rule 
29,  as  printed  at  §204  contain  the  following :  "And  eleven  to  the  prothon- 
otary  for  the  same  purposes  as  the  paper-book  of  the  appellant." 

These  rules  were  subsequently  amended  by  omitting  these  clauses, 
as  they  were  already  contained  in  other  rules.  This  correction  is  made 
in  the  rules  as  printed  in  the  Appendix. 

§93 /^-  Street  Railways:  After  final  judgment  [in  eminent  domain 
cases  by  street  railways]  either  party  may  appeal  therefrom  to  the  Super- 
ior Court  or  the  Supreme  Court,  as  the  case  may  require.  Act  June  i, 
1907,  §3,  P-  L.  370,  5  Purd.  5907,  pi.  131. 

[The  right  of  appeal  exists  also  under  the  Constitution  and  Act  of 
1874.  See  §48.] 

Table  of  Cases.  Com.  v  Heikes,  26  Pa.  513,  is  also  cited  in  §46,  n. 
(n)  (c)  instead  of  §43,  n.  (12),  as  stated  in  "Table  of  Cases." 


PREFACE.  vii 


PREFACE. 

This  volume  gives  in  juxtaposition  the  appropriate  pro- 
visions of  the  Constitution,  the  Acts  of  Assembly,  and  the 
Rules  of  Court  on  the  various  subjects  of  practice  in  the 
Supreme  and  Superior  Courts  of  Pennsylvania,  together 
with  the  great  body  of  decisions  on  these  subjects. 

Suggestions  are  made,  as  occasion  seems  to  warrant,  in 
the  text,  and  in  the  forms  in  the  Appendix,  in  regard  to 
matters  not  covered  by  the  Rules  of  Court  or  the  decisions, 
for  the  facilitation  of  the  business  before  the  court. 

One  such  point  of  practice  should  be  noted,  which,  al- 
though not  required  by  rules  of  court,  will  greatly  expe- 
dite the  examination  of  alleged  errors  and  conduce  to  ac- 
curacy of  practice.  The  rules  of  court  require  a  reference 
from  the  assignments  of  error  to  the  page  of  the  paper- 
book  where  rulings  on  evidence  may  be  found  in  the 
printed  notes  of  trial.  Frequently  there  are  several  rulings 
on  the  same  page,  or  a  ruling  may  extend  over  several 
pages  with  various  offers  and  admissions  of  evidence.  It 
is  not  fair  to  the  court  nor  to  opposing  counsel  to  require 
them  to  puzzle  out  the  exact  parts  of  the  record  assigned 
for  error.  The  portions  assigned  should  be  enclosed  within 
brackets  and  numbered  with  the  number  of  the  assign- 
ment. This  is  now  required  by  the  new  rules  as  to  the  por- 
tions of  the  charge  assigned  for  error.  In  no  other  way  can 
the  record  complained  of  be  conveniently  read  in  connec- 
tion with  the  context.  The  editor  cannot  too  earnestly 
urge  the  adoption  of  this  practice. 

Attention  is  also  directed  to  suggestions  made  for  cer- 
tain forms  in  the  printed  argument  in  the  paper-books,  not 
required  by  the  rules  of  court.  The  arrangement  of  the 
argument  by  logical  divisions  and  sub-divisions  is  one  of 


viii  PREFACE. 

first  importance.  It  helps  to  clarify  the  case;  it  greatly 
facilitates  its  examination  both  before  the  oral  argument 
and  afterwards;  and,  last,  but  not  least,  it  tends  to  make 
a  good  impression  on  the  court. 

A  chapter  has  been  added  dealing  with  the  subject  of 
"Review  on  Appeal."  Although  not  embraced  by  any  of 
the  rules  of  court,  it  is  believed  it  will  be  found  of  substan- 
tial aid  in  the  trial  of  cases  in  the  lower  courts,  so  that  the 
record  may  not  be  open  to  objection  and  may  be  in  proper 
condition  for  review. 

A  word  of  caution  should  be  given  to  practitioners  who 
wish  to  introduce  new  points  of  practice.  Be  sure  that 
they  do  not  violate  in  any  respect  the  letter  or  the  spirit  of 
the  rules  of  court.  If  they  do,  it  is  unwise  to  introduce 
them  without  the  direct  sanction  of  the  court. 

The  last  word  to  be  said  on  the  subject  is  that  a  strict 
compliance  with  the  rules  of  court,  the  adoption  of  all  avail- 
able means  of  simplifying  appeals  and  presenting  them  in 
logical  and  uniform  order,  is  not  only  the  best,  but  also  the 
safest,  way.  It  is  hoped  that  the  present  volume  will  con- 
tribute to  this  end. 

The  editor  acknowledges  his  indebtedness  to  Mr. 
George  M.  Henry,  of  the  Philadelphia  bar,  for  intelligent 
and  painstaking  assistance,  in  the  preparation  of  this  work. 

The  editor  also  wishes  to  express  his  indebtedness  to 
Mrs.  Margaret  C.  Klingelsmith,  librarian  of  the  Law  Li- 
brary of  the  University  of  Pennsylvania;  Mr.  Luther  E. 
Hewitt,  Librarian  of  the  Law  Association  of  Philadelphia, 
and  Mr.  Alfred  B.  Allen,  Deputy  Prothonotary  of  the  Su- 
preme Court  of  Pennsylvania  for  the  Eastern  District,  and 
to  their  obliging  assistants,  for  numerous  courtesies. 

THE  EDITOR. 
February  ist,  1912. 


TABLE  OF  CONTENTS.  ix 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

ORGANIZATION  OF  THE  APPELLATE   COURTS. 

§1.    Judicial  Power. 

(A)  How  Vested. 

(B)  Laws  and  Powers  Conferred  to  be  Uniform. 

§2.     Supreme  Court. 

(C)  Local  Laws  Prohibited. 

(A)  How  Constituted — Election  and  Term  of  Office. 

(B)  Election  by  Limited  Vote. 

(C)  Quorum. 

§3.        Chief  Justice. 

(A)  Commission,  Priority  of. 

(B)  Determination  by  Lot. 

(C)  Duties  in  Contested  Election  of  Governor. 

§4.        Vacancies  Filled  by  Governor — Term  of  Appointee — Subse- 
quent Election. 

§5.        Residence  of  Justices. 

§6.        Compensation. 

(A)  Salary. 

(B)  Allowance  for  Clerical  Assistance. 

§7.        Districts  and  Terms. 

(A)  Generally. 

(B)  Prescribing  Terms  and  Return-Days — Special  Return- 
Days. 

(C)  Transfer  of  Counties  and  Change  of  Terms  and  Re- 
turn Days. 

(D)  Continuance  of  Terms — Special  Terms. 

§8.        Officers. 

(A)  Prothonotaries — Duties. 

(B)  Crier — Tipstaves — Compensation — Payment. 


TABLE  OF  CONTENTS. 


§9.        Reporter. 

(A)  Appointment  and  Commission. 

(B)  Removal  and  Filling  Vacancy  by  Governor. 

(C)  Duties  of  Reporter. 

(D)  All  Cases  to  be  Reported. 

§10.        Reports. 

(A)  Style. 

(B)  Published  by  Contract. 

(C)  Advertisement  for  Proposals. 

(D)  Contractors  to  Give  Bond. 

(E)  Copyright. 

§11.        Powers. 

(A)  Generally. 

(B)  To  Devise  New  Writs. 

(C)  To  Award  Process  to  Collect  Costs,  Fines,  etc. 

(D)  To  Establish  Rules  of  Practice. 

(E)  To  Issue  Subpoenas  to  Witnesses. 

(F)  To  Arrange  Terms  and  Return-Days. 

(G)  To  Have  Seal  in  Each  District — Renewal. 

§12.     Superior  Court. 

(A)  How  Constituted — Election. 

(B)  Election  by  Limited  Vote. 

(C)  Term  of  Office. 

(D)  Quorum. 

§13.        President  Judge. 

(A)  Commission,  Priority  of. 

(B)  Determination  by  Lot. 

§14.        Vacancies  Filled  by  Governor — Subsequent  Election — Term. 

§15.        Compensation. 

(A)  Salary. 

(B)  Allowance  for  Clerical  Assistance. 

§16.        Districts  and  Terms — Hearing  of  Appeals. 

§17.        Officers. 

(A)  Prothonotaries — Duties. 

(B)  Crier — Tipstaves — Compensation. 

§18.        Reporter — Assistant  Reporter — Salary. 

§19.        Powers — Writs  and  Process — Service — Practice — Seal. 


TABLE  OF  CONTENTS.  xi 


CHAPTER  II. 

ADMISSION  OF  ATTORNEYS. 

§20.     State  Board  of  Law  Examiners. 

(A)  Established. 

(B)  Term  of  Office— Duties— Assistants— Officers. 

(C)  Circular  of  Information. 

§21.     Supreme  Court  Requirements. 

Recommendation  of  State  Board. 

§22.        Attorneys  who  Have  Practiced  Two  Years  at  Date  of  Rule. 
§23.        Students  Registered  at  Date  of  Rule. 

§24.        Registration. 

Preliminary  Examination. 

§25.  Certificate— Fees. 

§26.        Final  Examination. 

Preliminary  Requirements. 

§27.  Subjects  Required. 

§28.  How,  When  and  Where  Conducted. 

§29.        Attorneys  from  Other  States. 
Of  Five  Years'   Standing. 
§30.  Of  One  Year's  Standing. 

§31.  Of  Less  Than  One  Year's  Standing. 

§32.        Practice  on  Admission. 
§33.    Superior  Court  Requirements. 

(A)  Members  of  Bar  of  Supreme  Court. 

(B)  Members  of  Common  Pleas  of  Two  Years'  Standing. 

(C)  Applicants   for   Admission   Generally — Recommendation 

of  State  Board. 

(D)  Attorneys  from  other  States. 

CHAPTER  III. 

TERRITORIAL  AND  ORIGINAL  JURISDICTION. 

§34.     Supreme  Court. 

Territorial  Jurisdiction. 


xii  TABLE  OF  CONTENTS. 


§35.         Original  Jurisdiction. 

(A)  Generally. 

(B)  No  Duties  not  Judicial — Power  of  Appointment. 

§36.  Injunction. 

(A)  Generally. 

(B)  Hearing — Certifying  to  other  Districts. 

§37.  Habeas  Corpus. 

§38.  Mandamus. 

(A)  Generally. 

(B)  Certifying  from  One  District  to  Another. 

(C)  Hearing  and  Judgment — Damages  and  Costs. 

§39.  Quo  Warranto. 

§40.    Superior  Court. 

Territorial  Jurisdiction. 

§41.        Original  Jurisdiction — Habeas  Corpus. 


CHAPTER  IV. 

APPELLATE    JURISDICTION    AND    PARTIES GENERALLY. 

§42.    Generally. 

(A)  Constitutional  Provision. 

(B)  Power  to  Correct  Errors  of  Inferior  Courts. 

(C)  Power  to  Issue  Remedial  Writs. 

(D)  Power  to  Issue  Execution  for  Costs,  etc. 
§43.    Judgments  at  Law — Writ  of  Error — Parties. 

§44.    Orders  and  Decrees  in  Equity. 

(A)  Generally. 

(B)  Injunctions — Granting    and    Refusing    Special    Injunc- 

tions. 

(C)  Jurisdiction — When  Reviewable. 

§45.    Decrees  in  Orphans'  Court. 

§46.    Criminal  Cases. 

(A)  Generally. 

(B)  Murder  and  Voluntary  Manslaughter — Special  Allow- 

ance Unnecessary. 


TABLE  OF  CONTENTS.  xiii 


(C)  Murder   of   First   Degree — Court   to   Examine   for   In- 

gredients. 

(D)  Exceptions  in  all  Cases — Appeal  by  Commonwealth — 

Special  Allocatur. 

(E)  Appeal  from  Oyer  and  Terminer  Matter  of  Right. 

§47.    Appeal  not  Precluded  by  Prior  Appeal  of  Adverse  Party. 


CHAPTER  V. 

APPELLATE  JURISDICTION  AND  PARTIES — SPECIAL  CASES. 

§48.    Right  of  Review  in  Statutory  Proceedings. 

(A)  On  the  Merits. 

(B)  Certiorari  to  Test  Regularity. 

(C)  Form  of  Writ — All  Proceedings  to  be  Called  Appeals. 

(D)  Practice  on  Appeal. 

(E)  Laws  and  Powers  Conferred  to  be  Uniform. 

§49.    Account. 

(A)  Preliminary  Question  of  Liability  in  Equity. 

(B)  Review  of  Accounts  in  Orphans'  Court. 

(C)  Tenants  in  Common  of  Mines. 

§50.     Affidavits  of  Defense,  Judgment  for  Insufficient. 

(A)  Writ  by  Plaintiff. 

(B)  Dismissing  Writ   or   Entering   Judgment   in   Appellate 

Court — Right  to  Second  Writ  Preserved. 

§51.    Arbitration — Voluntary. 

(A)  Either  Party  May  Appeal. 

(B)  Assignee  for  Benefit  of  Creditors. 

§52.     Armories — Condemnation  of  Unopened  Public  Highway. 
§53.    Attorneys-at-Law — Rehearing  by  Supreme  Court. 

§54.    Auditors'  Settlements — Municipalities,  etc. 

(A)  Judgment  on  Issue — Joint  Appeal  by  Taxpayers. 

(B)  Appeal  on  Exceptions  to  Rulings. 

(C)  Poor  Districts — Appeal  by  Accountant,  Board  of  Direc- 

tors or  Taxpayer. 

§55.    Banks — Fraudulent  Insolvency — Proceeding  by  Assignee. 


xvi  TABLE  OF  CONTENTS. 


(B)  Pipes,  Character  of  and  Manner  of  Laying. 

(C)  Damages    for    Property    Injured    by    Construction    and 

Maintenance  of  Bridges. 

(D)  Damages  for  Public  Parks. 

(E)  Damages  for  Public  Grounds  and  Buildings. 

(F)  Benefits  and  Damages — Water-courses. 

(G)  License  Fees  for  Telegraph,  Telephone,  Light  or  Power 

Companies — Reasonableness. 

(H)  Cities  of  First  Class — Benefits  and  Damages — Improv- 
ing Plotted  Streets. 

(I)    Cities  of  First  Class — Damages  for  School  Purposes. 

(J)  Cities  of  Second  Class — Regulations  of  Councils  as  te 
Use  of  Streets. 

(K)  Cities  of  Third  Class — Benefits  and  Damages  for 
Streets,  Sewers,  Water-courses  and  Public  Works. 

(L)  Cities  of  Third  Class — Benefits  and  Damages  for  En- 
closing Water-ways. 

§81.    Natural  Gas  Companies. 

(A)  Land  Damages  for  Easement. 

§82.    Non-Suit—Refusal  to  Set  Aside. 

§83.    Orphans'  Court  Sales— Refusal  of  Feigned  Issue. 

§84.    Partition. 

(A)  Judgment  Quod  Partitio  Fiat. 

(B)  Mineral  Lands — Luzerne  County. 

§85.    Paupers — Issue  on  Appeal  from  Order  of  Removal. 

§86.    Pipe  Line  Companies. 

(A)  Land  Damages. 

(B)  Forfeiture  and  Escheat  by  Quo  Warranto. 

§87.    Plank  Roads — Equity  Proceedings. 

(A)  Philadelphia  District  Court. 

(B)  Common  Pleas  Generally. 

(C)  Judgment  Non  Obstante  Veredicto. 

(D)  Judgment  on  Whole  Record  where  Jury  have  Disagreed. 

§88.    Points  Reserved. 

§89.    Quo  Warranto. 

§90.    Railroads — Land  Damages. 


TABLE  OF  CONTENTS.  xvii 

§91.    Real  Estate. 

(A)  Price  Act — Proceedings. 

(B)  Quieting  Title — Refusal  of  Rule  or  Issue — Judgment. 

§92.    Recognizances,  Forfeited. 
§93.    Reference  Under  Act  of  1874. 
§94.    Tax  Assessments. 

§95.    Telegraph   Companies — Forfeiture  and  Escheat  by  Quo  War- 
ranto. 

§96.    Toll  Bridges — Purchase  or  Condemnation. 

(A)  By  Municipalities. 

(B)  By  Counties. 

§97.    Townships— First  Class. 

(A)  Land  Damages — Highways. 

(B)  Damages  and  Expenses — Connecting  with  Sewer  of  any 

Adjoining  Municipality. 

(C)  Land  Damages — Public  Parks  and  Playgrounds. 

§98    Trial  by  Court  Without  Jury. 

(A)  Review  of  Judgment. 

(B)  Review  on  Exceptions. 

(C)  Hearing. 

§99.    Trustees. 

§100.    Turnpikes. 

(A)  Opening — Land  Damages — Writ  of  Error. 

(B)  Condemnation — Roads  Lying  Wholly  or  in  Part  Within 

County — Certiorari. 

(C)  Writ  of  Error. 

(D)  Line  Dividing  two  Counties — Certiorari. 

(E)  Appeal. 

§101.    Weakminded  Persons — Appointment  of  Guardian. 
CHAPTER  VI. 

TO   WHAT   COURT   APPEAL  LIES. 

§102.     Supreme  Court. 

From  Quarter   Sessions — Cases  Involving  Right  to  Public 
Office. 


xviii  TABLE  OF  CONTENTS. 


§103.        From  Oyer  and  Terminer — Cases  of  Felonious  Homicide. 

§104.        From  Common  Pleas. 

(A)  Subject  Matter  Exceeding   $1500 — Actions  Brought 

or  Defended  by  Attorney  General. 

(B)  Distribution  Proceedings  where  Appeal  from  Final 

Decree  Lies  to  Supreme  Court. 

§105.        From  Orphans'  Court. 

(A)  Subject  Matter  Exceeding   $1500 — Actions  Brought 

or  Defended  by  Attorney  General. 

(B)  Distribution  Proceedings  where  Appeal  from  Final 

Decree  Lies  to  Supreme  Court. 

§106.        In  Damage  Cases — Joint  Actions  by  Husband  and  Wife — 
Parent  and  Child. 

§107.        In  Disbarment  Proceedings. 

§108.    Superior  Court. 

From  Quarter   Sessions — Cases  Involving  Right  to  Public 
Office  Excepted. 

§109.  From  Oyer  and  Terminer — Cases  of  Felonious  Homicide 
Excepted. 

§110.  From  Common  Pleas — Subject  Matter  not  Exceeding  $1500, 
Except  in  Proceedings  Brought  or  Defended  by  Attorney 
General. 

§111.  From  Orphans'  Court — Subject  Matter  not  Exceeding  $1500, 
Except  in  Proceedings  Brought  or  Defended  by  Attorney 
General. 

§112.  Agreement,  Jurisdiction  by. 

§113.  In  Divorce  Cases. 

§114.  In  Labor  Claims  Under  Act  of  1897. 

§115.  Objection  to  Jurisdiction — Waiver — Cost  of  Certifying. 

§116.        Jurisdiction  only  Where  Expressly  Given — Exclusive  in  Such 
Cases. 

§117.    Determination  of  Amount  in  Controversy. 

(A)  Realty  and  Chattel  Cases  Determined  by  Certificate  of 

Judge. 

(B)  Certificate  to  be  Filed  in  Certain  Cases. 


TABLE  OF  CONTENTS.  xix 

(C)  Production  of  Evidence  to  Aid  in  Making  Up  Certificate. 

(D)  Other  Cases  Determined  by  Amount  of  Judgment,  or  by 

Record  of  Claim  in  Case  of  no  Recovery. 
§118.     Consolidation  of  Appeals  in  Certain  Cases. 

(A)  Similar  Questions  Involved. 

(B)  Several  Parties  Uniting  in  Appeal. 

(C)  Proceedings   to   Obtain   Certificate   as  to  Whether 

Appeal  Affects  Entire  Report. 

(D)  Certifying  to  Proper  Court. 

§119.  Stay  of  Proceedings  in  Superior  Court  Pending  Decision  of 
Same  Questions  in  Supreme  Court — Certification  to  Supreme 
Court. 

§120.    Appeal  Erroneously  Taken. 

(A)  To  Supreme  Court. 

(B)  To  Superior  Court. 

§121.    Appeals  from  Decisions  of  Superior  Court. 
§122.    Appeal  Waived  by  Agreement. 

§123.    Proceedings  in  Supreme   Court — Entering  Judgment — Remit- 
ting Record. 

§124.    Certification  by  Superior  Court  Judges. 
§125.    Decisions  of  Supreme  Court  Binding  on  Superior  Court. 

CHAPTER  VII. 

TIME  FOR  TAKING  APPEALS. 

§126.  Appeals  from  Lower  Courts. 

§127.  No  Exemptions  Allowed. 

§128.  Appeals  from  Superior  Court. 

§129.  Computation  of  Time  Under  Statutes. 

CHAPTER  VIII. 

ENTRY  OF  APPEAL CERTIORARI — FILING  RECORD. 

§130.    Appeal,  Entry  of. 
Name  of  Writ. 
§131.        Praecipe. 


xx  TABLE  OF  CONTENTS. 


§132.        Filing— Affidavit  as  to  Delay,  etc. 
§133.        Rule  to  Appeal  and  Plead. 
§134.        Fees. 

(A)  Prothonotary  of  Appellate  Court. 

(B)  Prothonotary  or  Clerk  of  Lower  Court. 

(C)  Prothonotary  or  Clerk  of  Lower  Court  in  Philadel- 
phia County. 

§135.  Special  Allowance — Petition. 

§136.  Filing  of  Petition — Time — Procedure  after  Allowance. 

§137.  Costs  of  Filing. 

§138.  Procedure  after  Notice  of  Allowance. 

§139.  State  Tax  not  Allowed. 

§140.  Certiorari — Return — Time — Special  Order. 

§141.  Writ  Allowed  for  Failure  to  Return  or  Certify  Whole  Record. 

§142.  Costs  of  Special  Writs. 

§143.  Duty  of  Prothonotary  or  Clerk  of  Lower  Court. 

§144.  Filing  of  Record— Non  Pros. 

§145.  Special  Return  Days  in  Criminal  Cases. 

(A)  Supreme  Court. 

(B)  Superior  Court. 

CHAPTER  IX. 

RECORD  OF  COURT  BELOW. 

§146.    Whole  Record  Must  be  Certified  to  Appellate  Court. 

§147.    Charge  of  Court — Reducing  to  Writing  on  Request — Filing. 

§148.    Points  and  Charge — Written  Answers  Required — Filing — Civil 
Cases. 

§149.  Criminal  Cases. 

§150.    Findings  of  Fact  and  Law  in  Equity  Cases. 

§151.    Exceptions  to  Evidence — Criminal  Cases. 


TABLE  OF  CONTENTS.  xxi 

§152.  Stenographic  Notes  of  Proceedings — Orphans'  Court. 

§153.  Common  Pleas  and  Criminal  Courts. 

§154.  When  Transcript  Shall  be  Made. 

§155.  Filing  of  Transcript — Notice — Practice — Certification — Form. 

§156.  Excluding  Part  of  Transcript  by  Agreement — Order  of 
Court — Printing  by  Appellee — Cost — Printing  Plans 
and  Drawings. 

§157.        Daily  Transcript  May  be  Required. 

§158.        Notes  to  be  Filed  when  Transcript  not  Required — Cost  to 
Counsel. 

§159.        Payment  for  Transcript. 

(A)  Generally. 

(B)  Cases  in  Oyer  and  Terminer. 

(C)  When  it  is  Duty  of  Stenographer  to  File  Transcript 

Without  Order. 

§160.  Hearing  Before  Examiner,  etc. — Transcript  to  be  Furnished — 
Evidence — Compensation. 

§161.    Exceptions,  Bill  of — Sealing. 

§162.         (A)  Allowance   by    Trial    Judge   Unnecessary — Evidence — 
Charge — Answers  to  Points — Time  and  Manner  of 
Taking. 

(B)  Exception   to   Decision   of   Court   Unnecessary   Where 
Decision  Appears  in  Proceedings. 

CHAPTER  X. 

BAIL  IN  ERROR SUPERSEDEAS ALLOCATUR. 

/ 
§163.    Bail — Where  and  How  Entered — To  be  Fixed  by  Prothonotary. 

§164.        Approval  by  Court  Below. 

§165.        On  Appeal  from  Superior  Court — Additional  Bail. 

§166.        Surety — Who  May  not  Become. 

§167.    Supersedeas — Execution   Issued — Appeal   Must   be   Perfected 

Within  Three  Weeks. 
§168.        Not  Effected  Without  Security  Except  in  Certain  Cases. 


xxii  TABLE  OF  CONTENTS. 


§169.        Decree  Directing  Payment  of  Money — Release  of  Lien  of 
Judgment. 

§170.        Decree  Directing  Assignment  or  Delivery  of  Personal  Prop- 
erty. 

§171.  Sale  of  Perishable  Property. 

§172.  Decree  Directing  Execution  of  Conveyance. 

§173.  Decree  Granting  Injunction. 

§174.  Decree  in  Actions  Involving  Title  or  Possession  of  Realty. 

§175.        Decree  Dismissing  or  Removing  Persons  Acting  in  Fiduciary 
Capacity. 

§176.  Decree  for  Costs. 

§177.  Decree  Within  More  than  One  Class. 

§178.  Distribution  of  Account,  etc.,  or  Award  of  Damages. 

§179.  Special  Allocatur — Required  in  Certain  Cases. 

§180.  Procedure  to  Obtain. 

Supreme  Court. 

§181.  Superior  Court. 

CHAPTER  XL 

MODES  OF  REVIEW. 
§182.     Appellate  Proceedings — Name  and  Procedure. 

CHAPTER  XII. 

ASSIGNMENTS  OF  ERROR. 

§183.    Specification  of  Errors — Filing — Non-Pros — Quashing. 
§184.    Equity  Cases. 

(A)  Question  of  Remedy  at  Law — Waiver. 

(B)  Exceptions  Necessary. 

§185.     Each  Error  Must  be  Specified  Singly — Exception  in  Case  of 
Special  Verdict. 


TABLE  OF  CONTENTS,  xxiii 


§186.     Charge,  Points  for  Charge  and  Answe^  to/fye  Quoted. 
§187.    Admission  or  Rejection  of  Evidence.        *        £jb*. 
§188.    Appeals  from  Superior  Court.  /Dp  'ft  j 


CHAPTER 

^*r t 

**. 


PAPER-BOOKS. 


fa 


§189.  Style,  Index  and  Cover,  etc. 

§190.  Contents — Paper-Books  of  Appellant — Judgment  on  Verdict. 

§191.  Judgment  on  Case  Stated. 

§192.  Judgments  at  Law  not  Founded  on  Verdict  or  Case  Stated. 

§193.  Equity  and  Orphans'  Court. 

§194.  Quarter  Sessions  Court. 

§195.  Certificate  of  Amount  in  Controversy — Quashing. 

§196.  Statement  of  Question  Involved. 

§197.  History  of  Case. 

§198.  Assignments  of  Error. 

§199.  Brief  of  Argument. 

§200.  Citation  of  Authorities. 

§201.  Appeals  from  Superior  Court. 

§202.  Paper-Book  of  Appellee. 

§203.    Service — (A)  Generally — Number  of  Copies  to  be  Furnished. 

(B)  Criminal  Cases. 
§204.    Philadelphia  County. 
§205.    Penalty  for  Non-Compliance  with  Rules — Non-Suit. 

CHAPTER  XIV. 

HEARING  OF   CASES. 

§206.    Argument  List — Supreme  Court. 

(A)  Appeals  from  Lower  Courts. 

(B)  Appeals  from  Superior  Court. 
§207.        Superior  Court. 


xxiv  TABLE  OF  CONTEXTS. 


§208.        Call    of    Cases — Absence    of    Parties — Non-Pros — Supreme 
and  Superior  Courts. 

§209.        Weekly  List — Assignment  of  Cases — Supreme  Court. 
§210.  Superior  Court. 

5211.        Daily  List — Cases  to  be  Non-Prossed  if  not  Argued — Su- 
preme and  Superior  Courts. 

§212.  Short  Causes — Supreme  Court. 

§213.  Superior  Court. 

§214.  Certificate  of  Counsel — Notice  of  Transfer. 

§215.  Objection  by  Opposing  Counsel. 

§216.  Time  for  Hearing. 

§217.  Time  Allowed  for  Argument. 

§218.  Criminal  Cases — Supreme  Court — Murder  in  First  Degree. 

§219.  Superior  Court. 

§220.        Continuance — Allowed  Only  for   Cause — Supreme   and  Su- 
perior Courts. 

§221.  Passing  Case  on  List — Supreme  and  Superior  Courts. 

§222.  Argument — Order  of  Hearing — Superior  Court. 

§223.  Time  Allowed — Supreme  Court. 

§224.  Ex  Parte — Supreme  and  Superior  Courts. 

§225.  Re-argument — Motion — Attaching  Copy  of  Opinion. 

§226.  Rule  for  New  Trial  Nunc  Pro  Tune  in  Murder  Cases — Petition. 

§227.  Agreements  and  Notices  of  Attorneys  to  be  in  "Writing. 

CHAPTER  XV. 

REVIEW  ON  APPEAL. 

§228.    Judgment — Power  to  Affirm,  Reverse  or  Modify  Decree  Ap- 
pealed from  or  Grant  New  Trial. 

(A)  Supreme  Court. 

(B)  Superior  Court. 

(C)  Equity  Cases — Question  of  Remedy  at  Law. 


TABLE  OF  CONTENTS.  xxv 

§229.    Review  on  Merits  in  Appeals  from  Orphans'  Court. 
§230.    Review  of  Law  and  Evidence  in  Capital  Cases. 
§231.    Merits  of  Case  not  to  be  Considered  in  Road  Cases. 

CHAPTER  XVI. 

AMENDMENTS QUASHING NON-PROS ABATEMENT — 

DISCONTINUANCE. 

§232.  Amendments. 

§233.  Quashing  writ. 

§234.  Non-Pros— Non-Suit. 

§235.  Abatement — Action  to  Survive  to  Personal  Representatives. 

§236.  Discontinuance. 

CHAPTER  XVII. 

JUDGMENT — COSTS PENALTIES RESTITUTION REMITTITUR. 

§237.    Judgment  to  be  Noted  and  Transmitted  to  Prothonotary  of 
Court  from  which  Appeal  Was  Taken. 

§238.    Lien  of  Judgment. 

(A)  When  Lien  Becomes  Effective. 

(B)  Release  of  Lien  of  Judgment  of  Lower  Court  on  Taking 

Appeal — Bail. 
§239.    Costs. 

(A)  To  be  Paid  by  Losing  Party. 

(B)  Payment  by  County  in  Murder  Cases  against  Destitute 

Defendants. 

§240.        Paper-Books —  Printing. 
§241.        Special  Writs  and  Petitions. 

§242.    Penalties — Appeals  for  Delay — Additional  Attorney  Fee — In- 
terest. 

§243.    Restitution. 

§244.    Remittitur — Copy  of  Opinion  to  be  Sent  to  Lower  Court 


xxviii  TABLE  OF  CONTENTS — APPENDIX. 

—Exhibit  "C"— Proof  of  Publication  of  Notice  of  Intended 
Application  in  "Legal  Intelligencer." 

—Exhibit  "D"— Proof  of  Publication  of  Notice  of  Intended 
Application  in  Local  Periodical. 

—Exhibit  "E"— Certificate  of  Good  Moral  Character. 

§11,  Ap. — Certificate  of  State  Board  Recommending  Admission  to  the 
Bar. 

§12,  Ap. — Praecipe  for  Admission  to  Supreme  Court  on  Recommenda- 
tion of  State  Board. 

§13,  Ap. — Praecipe  for  Admission  to  Superior  Court  Where  Appli- 
cant Was  Admitted  to  Common  Pleas  on  or  before 
May  22,  1903. 

§14,  Ap. Where  Applicant  Has  Been  Admitted  to  Supreme  Court. 

§15,  Ap. On  Recommendation  of  State  Board. 

§16,  Ap. — Oath  of  Attorney  on  Admission  to  Bar. 
§17,  Ap. — Certificate  of  Admission  of  Attorney  to  Supreme  Court. 
§18,  Ap. — Certificate  of  Admission  of  Attorney  to  Superior  Court. 
§19,  Ap. — Certificate  Recommending  Admission   to  Bar  of  Another 

State. 

§20,  Ap. — Supreme  Court  Districts  and  Counties. 
§21,  Ap. — Supreme  Court  Terms  and  Return  Days. 
§22,  Ap. — Superior  Court  Terms  and  Return  Days. 
§23,  Ap. — Petition  for  Quo  Warranto. 

§24,  Ap. — Affidavit  Accompanying  Petition  for  Quo  Warranto. 
§25,  Ap. — Petition  for  Mandamus. 
§26,  Ap. — Petition  for  Habeas  Corpus. 

§27,  Ap. — Petition  for  Special  Allowance  of  Appeal  from  Superior  to 
Supreme  Court. 

§28,  Ap. — Objection  by  Appellee  to  Jurisdiction  of  Superior  Court. 
§29,  Ap. — Petition  of  Appellant  to  Certify  Case  to  Supreme  Court. 
§30,  Ap. — Petition  for  Special  Allowance  o£  Supersedeas. 
§31,  Ap. — Bill  of  Exceptions. 


TABLE  OF  CONTENTS — APPENDIX.  xxix 

§32,  Ap. — Petition  to  Compel  Sealing  of  Bill  of  Exceptions. 

§33,  Ap. — Writ  Directing  Exceptions  fo  be  Sealed. 

§34,  Ap. — Certificate  of  Amount  in  Controversy. 

§35,  Ap. — Praecipe  for  Certiorari — Supreme  Court. 

§36,  Ap. — Praecipe  for  Certiorari — Superior  Court. 

§37,  Ap. — Appeal  and  Affidavit — Appeal  from  Common  Pleas  to  Su- 
preme Court. 

§38,  Ap. — Appeal  and  Affidavit — Appeal  from  Orphans'  Court  to  Su- 
preme Court. 

§39,  Ap. — Appeal  and  Affidavit — Appeal  from  Common  Pleas  to  Su- 
perior Court. 

§40,  Ap. — Appeal  and  Affidavit — Appeal  from  Orphans'  Court  to  Su- 
perior Court. 

§41,  Ap. — Certiorari  for  Eecord — Appeal  from  Common  Pleas  to  Su- 
preme Court. 

§42,  Ap. — Certiorari  for  Record — Appeal  from  Orphans'  Court  to  Su- 
preme Court. 

§43,  Ap. — Certiorari  for  Record — Appeal  fom  Oyer  and  Terminer  to 
Supreme  Court. 

§44,  Ap. — Certiorari  for  Record — Appeal  from  Quarter  Sessions  to  Su- 
preme Court. 

§45,  Ap. — Certiorari  for  Record — Appeal  from  Common  Pleas  to  Su- 
perior Court. 

§46,  Ap. — Certiorari  for  Record — Appeal  from  Orphans'  Court  to  Su- 
perior Court. 

§47,  Ap. — Certiorari  for  Record — Appeal  from  Oyer  and  Terminer  to 
Superior  Court. 

§48,  Ap. — Certiorari  for  Record — Appeal  from  Quarter  Sessions  to  Su- 
perior Court. 

§49,  Ap. — Petition  Suggesting  Diminution  of  Record;  Decree. 
§50,  Ap. — Certiorari  Sur  Diminution  of  Record — Supreme  Court. 
§51,  Ap. — Certiorari  Sur  Diminution  of  Record — Superior  Court. 
§52,  Ap. — Appeal  Bond — Common  Pleas. 


xxx  TABLE  OF  CONTENTS — APPENDIX. 

§53,  Ap. — Affidavit  of  Sureties — Approval  by  Court. 

§54,  Ap. — Appeal  Bond — Orphans'  Court. 

§55,  Ap. — Fixing  Amount  of  Security — Orphans'  Court. 

§56,  Ap. — Order  for  Appearance  by  Appellee. 

§57,  Ap. — Substitution  of  Personal  Representative  of  Deceased  Party. 

§58,  Ap. — Forms  for  Paper-Books. 

— (A)  Appeal  from  Judgments  on  Verdicts. 

—  (B)  Appeals  from  Judgments  in  the  Common  Pleas  not 
Founded  on  Verdict  or  on  Case-stated. 

— (C)  Appeals  from  Judgments  in  Cases-stated. 

— (D)  Appeals  from  Proceedings  in  Equity  or  from 
Proceedings  in  the  Nature  Thereof  in  the  Com- 
mon Pleas. 

— (E)  Appeals  from  Orphans'  Court. 

— (F)  Appeals  to  Superior  Court  from  Proceedings  in 
Quarter  Sessions,  in  Cases  not  Provided  for  in 
Rule  17,  (A)  this  Section. 

— (G)  Appeals  in  Criminal  Cases. 

— (H)  Appeals  from  Superior  Court. 

— (I)    Appeals  in  Cases  not  Provided  for  in  the  Rules. 

— (K)  Paper-book  of  Appellee. 

§59,  Ap. — Certificate  of  Counsel    that  Cases  Cited  Are  not  in  State 

Reports. 

§60,  Ap.— Order  to  Put  Case  on  Short  List. 
§61,  Ap. — Certificate  of  Opposing  Counsel  to  Remove  Case  from  Short 

List. 

§62,  Ap. — Order  for  Discontinuance. 

§63,  Ap.— Petition  for  Rule  to  Show  Cause  Why  Penalty  for  Taking 

Appeal  for  Delay  Should  not  be  Imposed. 
§64,  Ap.— Rule  for  Penalty. 
§65,  Ap. — Motion  to  Quash  Appeal. 
§66,  Ap.— Petition  for  Rule  to  Take  Off  Non  Pros. 
§67,  Ap. — Petition  for  Re-argument. 


TABLE  OF  CONTENTS — APPENDIX.  xxxi 

§68,  Ap. — Order  and  Rule  on  Petition  for  Re-argument. 

§69,  Ap. — Petition  for  Allowance  of  Rule  for  New  Trial  Nunc  Pro 
Tune  in  Murder  Case. 

§70,  Ap. — Remittitur — Supreme  Court. 
§71,  Ap. — Remittitur — Superior  Court. 

Page. 

Supreme  Court  Rules    550 

Superior  Court   Rules    568 

Equity  Rules    582* 


PENNSYLVANIA 
APPELLATE  PRACTICE 


CHAPTER  I. 

ORGANIZATION  OF  THE  APPELLATE   COURTS. 

§1.     Judicial  Power. 

(A)  How  Vested. 

(B)  Laws  and  Powers  Conferred  to  be  Uniform. 

(C)  Local  Laws  Prohibited. 

§2.     Supreme  Court. 

(A)  How  Constituted — Election  and  Term  of  Office. 

(B)  Election  by  Limited  Vote. 

(C)  Quorum. 
§3.        Chief  Justice. 

(A)  Commission,  Priority  of. 

(B)  Determination  by  Lot. 

(C)  Duties  in  Contested  Election  of  Governor. 

§4.        Vacancies  Filled  by  Governor — Term  of  Appointee — Subse- 
quent Ejection. 
§5.        Residence  of  Justices. 
§6.        Compensation. 

(A)  Salary. 

(B)  Allowance  for  Clerical  Assistance. 
§7.        Districts  and  Terms. 

(A)  Generally. 

(B)  Prescribing  Terms  and  Return-Days — Special  Return- 
Days. 

(C)  Transfer  of  Counties  and  Change  of  Terms  and  Re- 
turn Days. 

(D)  Continuance  of  Terms — Special  Terms. 

§8.        Officers. 

(A)  Prothonotaries — Duties. 

(B)  Crier — Tipstaves — Compensation — Payment. 


ORGANIZATION  OF  COURTS. 


Synopsis  of  Chapter  [Chap.  1, 


§9.        Reporter. 

(A)  Appointment  and  Commission. 

(B)  Removal  and  Filling  Vacancy  by  Governor. 

(C)  Duties  of  Reporter. 

(D)  All  Cases  to  be  Reported. 
§10.        Reports. 

(A)  Style. 

(B)  Published  by  Contract. 

(C)  Advertisement  for  Proposals. 

(D)  Contractors  to  Give  Bond. 

(E)  Copyright. 

§11.        Powers. 

(A)  Generally. 

(B)  To  Devise  New  Writs. 

(C)  To  Award  Process  to  Collect  Costs,  Fines,  etc. 

(D)  To  Establish  Rules  of  Practice. 

(E)  To  Issue  Subpoenas  to  Witnesses. 

(F)  To  Arrange  Terms  and  Return-Days. 

(G)  To  Have  Seal  in  Each  District — Renewal. 
§12.     Superior  Court. 

(A)  How  Constituted — Election. 

(B)  Election  by  Limited  Vote. 

(C)  Term  of  Office. 

(D)  Quorum. 
§13.        President  Judge. 

(A)  Commission,  Priority  of. 

(B)  Determination  by  Lot. 

§14.        Vacanciesi  Filled  by  Governor — Subsequent  Election — Term. 
§15.        Compensation. 

(A)  Salary. 

(B)  Allowance  for  Clerical  Assistance. 

§16.        Districts  and  Terms — Hearing  of  Appeals. 

§17.         Officers. 

(A)  Prothonotaries — Duties. 

(B)  Crier — Tipstaves — Compensation. 

§18.        Reporter — Assistant  Reporter — Salary. 

§19.        Powers — Writs  and  Process — Service — Practice — Seal. 


SUPREME  COURT. 


§§  1-19]  Judical  Power — Laws  to  be  General  and  Uniform  §§  1,  2 

§i.  Judicial  Power,  How  Vested.  (A)  The  judicial 
power  of  this  commonwealth  shall  be  vested  in  a  Supreme 
Court,  [certain  subordinate  courts  here  named]  and  in 
such  other  courts  as  the  General  Assembly  may  from  time 
to  time  establish.  Const.,  art  5,  §i,  i  Purd.  173,  pi.  103. 

—  (B)  Laws  and  Powers  Conferred  to  be  Uniform.  All 
laws  relating  to  courts  shall  be  general  and  of  uniform  op- 
eration, and  the  organization,  jurisdiction  and  powers  of 
all  courts  of  the  same  class  or  grade,  so  far  as  regulated  by 
law,  and  the  force  and  effect  of  the  process  and  judgment 
of  such  courts,  shall  be  uniform.  Const.,  art  5,  §26,  I 
Purd.  183,  pi.  128. 

— (C)  Local  Laws  Prohibited.  The  general  assembly 
shall  not  pass  any  local  or  special  law  ....  regulating  the 
practice  or  jurisdiction  of  ...  any  judical  proceeding  or  in- 
quiry before  courts.  Const.,  art.  3  §7,  i  Purd.  (152,  pi. 
52). 

(1)  Constitutional  Classification.    Laws  based  on  classification  by 
the  constitution  are  not  local  or  special:  Gottschall  v.  Campbell,  20 
Dist.  612;  affirmed  in  Supreme  Court,  Jan.  2,  1912. 

(2)  Superior  Court.    The  Superior  Court  was  established  under 
the  last  clause  of  this  sectiou  of  the  Constitution  by  Act  June  24, 
1895,  P.  L.  212,  §12,  below :  Com.  v.  Reeder,  171  Pa.  505,  1895. 

(3)  Provision  as  to  Uniformity  Prospective  only.    The  provision 
of  the  constitution  as  to  uniformity  is  prospective  only  and  does  not 
execute  itself:  Lehigh  Iron  Co.  v.  Twp.,  81  Pa.  482,  1876;  Bright  v. 
Coal  &  Mining  Co.,  10  Phila.  609,  1874;  Wattson  v.  R.  R.,  83  Pa.  254, 
1877 ;  Risheberger  v.  Wilson,  25  C.  C.  465,  1901. 

§2.  Supreme  Court —  (A)  How  Constituted — Election 
and  Term  of  Office.  The  Supreme  Court  shall  consist  of 
seven  judges,  who  shall  be  elected  by  the  qualified  electors 
of  the  state  at  large.  They  shall  hold  their  offices  for  the 
term  of  twenty-one  years,  if  they  so  long  behave  them- 
selves well,  but  shall  not  be  again  eligible.  Const.,  art.  5, 
§2,  i  Purd.  175,  pi.  104. 


ORGANIZATION  OF  COURTS. 


§  2  Supreme    Court — Election — Term — Quorum  [Chap.  1, 

All  judges  elected  by  the  electors  of  the  state  at  large 
may  be  elected  at  either  a  general  or  municipal  election,  as 
circumstances  may  require.  Const.,  art.  8,  §3,  as  amended 
Nov.  2,  1909. 

—  (B)   Election  by  Limited  Vote.      Whenever    two 
Judges  of  the  Supreme  Court  are  to  be  chosen  for  the  same 
term  of  service  each  voter  shall  vote  for  one  only,  and 
when  three  are  to  be  chosen  he  shall  vote  for  no  more  than 
two;  candidates  highest  in  vote  shall  be  declared  elected. 
Const.,  art  5,  §16,  I  Purd.  180,  pi.  118. 

—  (C)   Quorum.     The  said  Judges    [of  the  Supreme 
Court]  or  a  majority  of  them,  when  convened  for  the  pur- 
pose agreeably  to  law,  shall  have  power  to  hold  the  said 
court.    Act  April  14,  1834,  §2,  P.  L.  333,  4  Purd.  4508,  pi.  3. 

(1)  Qualifications.     The  Judges  of  the  Supreme  Court  shall  be 
learned  in  the  law    ....    and  shall  be  qualified  electors  of  this 
commonwealth,  and  shall  be  otherwise  qualified  as  required  by  the 
second  section  of  the  fifth  article  of  the  constitution  of  this  common- 
wealth (§2  (A),  above) :  Act  April  15,  1851,  §3,  P.  L.  648,  4  Purd. 
4508,  pi.  4. 

(2)  Quorum — Personal  Interest.     If  one  or  more  of  the  justices 
decline  to  sit  because  of  personal  interest,  the  powers  of  the  court  nec- 
essarily devolve  on  the  remaining  judges,  even  if  only  a  minority  of  the 
court.    Com.  v.  Mathues,  210  Pa.  372,  1904. 

(3)  Beginning  of  Term  of  Office.    Act  April  30, 1874,  §1,  P.  L.  118, 
4  Purd.  4509,  provides  that  term  shall  begin  on  1st  Monday  of  Janu- 
ary succeeding  their  election.    It  ends  on  first  Monday  of  January 
twenty-one  years  later,  though  such  Monday  falls  on  later  day  of 
month:  Lewis's  Case,  29  Pa.  518,  1857. 

(4)  Commissions  of  Judges.    Commissions  are  granted  by  the  Gov- 
ernor for  the  term  prescribed  by  the  constitution :  Act  April  15,  1851, 
§11,  P.  L.  648,  4  Purd.  4509,  pi.  6,  where  act  is  erroneously  cited 
as  Act  of  1849.    See  §  4,  below,  as  to  vacancies. 

(5)  Election  of  Judges.    The  Act  of  April  15,  1851,  P.  L.  648, 
2  Purd.  2031,  et  seq.,  providing  for  the  election  of  Judges  of  the  Su- 
preme Court,  is  repealed  only  so  far  as  modified  by  the  general  elec- 
tion Acts:  Barber's  Case,  86  Pa.  392,  1878. 


SUPREME  COURT. 


§§  1-19]    Election — Chief  Justice — Determination  by  Lot — Duties  §  3 

(6)  Contested  Elections  of  Judges.    For  statutes  governing  con- 
tested election  of  judges,  see  Act  May  19,  1874,  P.  L.  208,  2  Purd. 
1383,  pi.  326,  and  Act  June  12,  1878,  P.  L.  204,  §63  (B),  (C)  and  (D) 
below,  2  Purd.  1386-7,  pi.  351-4;  Id.  2034,  pi.  17-20;  also  Const.,  art. 
8,  §17,  1  Purd.  191,  pi.  152.    The  Constitution  and  these  Acts  repeal 
prior  acts  only  so  far  as  modified  thereby:  Barber's  Case,  86  Pa.  392, 
1878. 

(7)  General  and  Municipal  Elections.    Under  the  constitutional 
amendments  of  1909,  general  elections  are  to  be  held  on  Tuesday  after 
the  first  Monday  of  November  in  even-numbered  years,  and  municipal 
elections  on  the  same  day  in  odd-numbered  years.    The  constitutional 
distinction  between  general  and  local  elections  must  be  read  into  the 
statutes  regulating  elections:  Wilkes-Barre  Record  v.  Luzerne  Co.,  6 
Pa.  Super.  600,  1898;  affirming  9  Kulp  26, 1897. 

(8)  Election  after  Vacancies.    For  provision  as  to  election  after 
vacancies,  see  §4,  below. 

§3.    —  Chief  Justice —  (A)   Commission,  Priority  of. 

The  judge  whose  commission  shall  first  expire  shall  be 
Chief  Justice,  and  thereafter  each  judge  whose  commission 
shall  first  expire  shall  in  turn  be  Chief  Justice.  Const.,  art. 
5,  §2,  i  Purd.  175,  pi.  104. 

(B)  Determination  by  Lot.  Should  any  two  or 

more  Judges  of  the  Supreme  Court,  or  any  two  or  more 
judges  of  the  court  of  common  pleas  for  the  same  dis- 
trict, be  elected  at  the  same  time,  they  shall,  as  soon 
after  the  election  as  convenient,  cast  lots  for  priority  of 
commission,  and  certify  the  result  to  the  Governor  who 
shall  issue  their  commissions  in  accordance  therewith. 
Const.,  art.  5,  §17,  i  Purd.  180,  pi.  119. 

(C)  Duties  in  Contested  Election  of  Governor. 

The  Chief  Justice  of  the  Supreme  Court  shall  preside  upon 
the  trial  of  any  contested  election  of  Governor,  or  Lieu- 
tenant-Governor,  and  shall  decide  questions  regarding 
the  admissibility  of  evidence,  and  shall,  upon  request  of  the 
committee  [selected  by  both  houses  of  the  General  Assem- 


ORGANIZATION  OF  COURTS. 


§  4  Supreme  Court — Vacancies  [Chap.  1, 

bly,  under  art.  4,  §2,  of  the  Constitution],  pronounce  his 
opinion  upon  other  questions  of  law  involved  in  the  trial. 
Const.,  art.  4,  §17,  i  Purd.  173,  pi.  97. 

§4.  —  Vacancies  Filled  by  Governor — Term  of  Ap- 
pointee— Subsequent  Election.  Any  vacancy  happening 
by  death,  resignation  or  otherwise,  in  any  court  of  record, 
shall  be  filled  by  appointment  by  the  Governor,  to  continue 
till  the  first  Monday  of  January  next  succeeding  the  first 
general  (or  municipal)  election  which  shall  occur  three 
(two)  or  more  months  after  the  happening  of  such  va- 
cancy. Const.,  art.  5,  §25,  I  Purd.  183,  P.  L.  127,  as  amend- 
ed in  effect  in  1909.  See  note  (2),  this  section. 

He  [the  Governor]  shall  have  power  to  fill  any  vacancy 
that  may  happen,  during  the  recess  of  the  Senate,  [in 
certain  offices  named]  in  a  judicial  office,  or  in  any 
other  elective  office  which  he  is  or  may  be  authorized  to 
fill;  if  the  vacancy  shall  happen  during  the  session  of  the 
Senate,  the  Governor  shall  nominate  to  the  Senate,  be- 
fore their  final  adjournment,  a  proper  person  to  fill 
said  vacancy;  but  in  any  such  case  of  vacancy  in  an 
elective  office,  a  person  shall  be  chosen  to  said  office  on 
the  next  election  day  appropriate  to  such  office,  according 
to  the  provisions  of  this  constitution,  unless  the  vacancy 
shall  happen  within  two  calendar  months  immediately  pre- 
ceding such  election  day,  in  which  case  the  election  for 
said  office  shall  be  held  on  the  second  succeeding  election 
day  appropriate  to  such  office.  Const.,  art.  4,  §8,  I  Purd. 
170,  pi.  88,  as  amended  Nov.  2,  1909. 

(1)  Computing  Time  of  Vacancy.    This  period  excludes  the  day  on 
which  the  vacancy  occurs  and  includes  election  day :  Com.  v.  Maxwell, 
27  Pa.  444,  1857;  Judge's  Commission,  2  Chester  Co.,  317,  1884. 

(2)  Constitutional  Amendment  of  1909.     The  above  amendment, 
in  so  far  as  it  provides  that  unless  a  vacancy  occurs  within  two 


SUPREME  COURT. 


§§  1-19]  Residence  of  Justices — Compensation  §§  5,  6 

months  preceding  an  election  it  shall  be  filled  at  such  election,  is  in- 
consistent with  §25  of  art.  5,  above,  which  fixes  the  time  at  three 
months  prior  to  election.  Amendment  to  §3,  art.  8,  (§2  (A),  above),  is 
also  inconsistent  with  §25  of  art.  5,  in  so  far  as  it  provides  for  the 
election  of  judges  at  municipal  elections.  Art.  5,  §25,  above,  is  there- 
fore amended  in  these  respects.  Com.  v.  Mathues,  210  Pa.  372,  1905, 
does  not  seem  to  conflict  with  this  interpretation. 

(3)     Vacancy  by  Resignation  for  Disability.  See  §6  note  (4),  below. 

§5.  —  Residence  of  Justices.  The  Judges  of  the  Su- 
preme Court,  during  their  continuance  in  office,  shall  reside 
within  this  commonwealth.  Const.,  art.  5,  §19,  I  Purd. 
181,  pi.  121. 

§6.  -  Compensation —  (A)  Salary.  The  Judges  of  the 
Supreme  Court  and  the  judges  of  the  several  courts  of 
common  pleas,  and  all  other  judges  required  to  be  learned 
in  the  law,  shall  at  stated  times  receive  for  their  services 
an  adequate  compensation,  which  shall  be  fixed  by  law,  and 
paid  by  the  state.  They  shall  receive  no  other  compensa- 
tion, fees  or  perquisites  of  office  for  their  services  from  any 
source,  nor  hold  any  other  office  of  profit  under  the  United 
States,  this  state  or  any  other  state.  Const.,  art.  5,  §18, 
i  Purd.  1 80,  pi.  1 20. 

(B)  Allowance  for  Clerical  Assistance.  To  facili- 
tate the  labors  of  the  Justices  of  the  Supreme  Court,  each 
of  said  Justices  is  hereby  authorized  to  employ  stenogra- 
phers, typewriters  and  such  clerk  or  clerks  as  in  his  judg- 
ment may  be  necessary  to  facilitate  his  labors,  and  for  the 
payment  of  the  services  of  such  person  or  persons  employ- 
ed by  him,  each  of  the  members  of  the  said  court  is  to  be 
allowed  the  sum  of  twenty-five  hundred  dollars,  annually, 
or  so  much  thereof  as  may  be  necessary,  to  be  paid  to  him 
in  quarterly  payments  by  the  state  treasurer  on  his  war- 


ORGANIZATION  OF  COURTS. 


§  6  Supreme  Court — Compensation  of  Justices  [Chap.  1, 

rants  upon  said  officer  for  the  same.    Act  June  i,  1901,  §i> 
P.  L.  356,  4  Purd.  4511,  pi.  24. 

(1)  Salary  of  Justices.     The  annual  salary  of  the  Chief  Justice 
shall  be  ten  thousand  five  hundred  dollars,  and  the  annual  salary  of 
each  of  the  Associate  Justices  shall  be  ten  thousand  dollars:    Act 
April  14,  1903,  §1,  P.  L.  175,  4  Purd.  4363,  pi.  74. 

(2)  Increase  of  Salary.    Act  April  14,  1903,  P.  L.  175,  fixing  the 
salary  of  the  Judges  of  the  Supreme  Court  and  of  the  other  courts  of 
the  commonwealth,  applies  to  all  judges  in  commission  when  the  act 
was  approved  and  not  merely  to  those  commissioned  thereafter.    The 
provision  of  Const.,  art.  3,  §13,  1  Purd.  162,  that  "no  law  shall  ex- 
tend the  term  of  any  public  officer  or  increase  or  diminish  his  salary 
or  emoluments  after  his  election  or  appointment,"  has  no  application 
to  the  judiciary  and  cannot  be  read  into  the  judiciary  article :     Com.  v. 
Mathues,  210  Pa.  372,  1904. 

(3)  Payment  of  Salary.    The  annual  salary  of  the  Justices  shall 
be  paid  monthly.    Act  April  14,  1903,  §5,  P.  L.  175,  4  Purd.  4364, 
pi.  78. 

(4)  Salary  on  Retirement  for  Disability.     The  Act  of  June  23, 
1911,  P.  L.  1121,  provides  that  whenever  the  governor  is  of  the  opinion, 
based  on  satisfactory  medical  evidence,  that  by  reason  of  physical  or 
mental  disability,  a  judge  of  the  Supreme  or  Superior  Court  is  per- 
manently incapacitated  for  performance  of  his  duties,  he  shall  notify 
such  judge,  and  if  the  latter  shall  resign  within  30  days  after  such 
notice,  and  shall  hold  himself  in  readiness  to  advise  with  his  suc- 
cessors and  colleagues  and  perform  duties  as  special  master,  referee, 
or  examiner  in  such  ways  as  he  may  be  reasonably  able  to  do,  he 
shall  receive,  for  the  balance  of  the  term  for  which  he  was  elected, 
the  salary  he  would  have  received  if  he  had  remained  in  active  ser- 
vice.   The  Act  also  provides  that  any  judge  so  resigning,  who  shall 
have  serviced  continuously  in  judicial  office  for  twenty  years  or  more 
prior  to  his  resignation  and  who  shall  hold  himself  in  readiness  to 
perform  the  duties  above  stated,  shall  receive,  during  the  remainder 
of  his  life,  after  the  expiration  of  his  term,  one-half  of  the  salary  he 
would  have  received  in  active  service.     Any  judge  who  shall  have 
served  continuously  in  office  for  twenty  years  or  more  and  who  shall 
hold  himself  in  readiness  to  perform  the  duties  stated,  is  also  allowed 
one-half  salary  for  the  remainder  of  his  life,  after  his  honorable  re- 
tirement from  office,  by  expiration  of  term,  resignation,  or  otherwise. 
Any  vacancies  created  by  retirement  under  said  act,  are  to  be  filled  in 
the  same  manner  as  other  vacancies  in  judicial  office. 

8 


SUPREME  COURT. 


§§1-19]  Districts  and  Terms  §7 

§7.  —  Districts  and  Terms —  (A)  Generally.  For  the 
purpose  of  holding  the  said  Supreme  Court,  the  common- 
wealth is  hereby  declared  to  be  divided  into  four  districts, 
denominated  the  eastern  district,  the  western  district,  the 
northern  district  and  the  middle  district.  Act  April  14,  1834, 
§4,  P.  L.  333,  4  Purd.  4509,  pi.  10. 

—  —  (B)  Prescribing  Terms  and  Return-Days — 
Special  Return-Days.  The  Judges  of  the  Supreme 
Court  shall  annually  hold  four  regular  terms  of  the 
said  court,  to-wit:  One  for  the  eastern  district,  in  the 
city  of  Philadelphia,  commencing  on  the  first  Mon- 
day of  January  .  .  .  .  ;  one  for  the  middle  dis- 
trict at  [the  borough  of]  Harrisburg,  commencing  on 
the  twentieth  Monday  of  each  year  .  .  .  .  ;  one  for 
the  northern  district,  commencing  on  the  third  Mon- 
day of  September  .  .  .  .  ;  and  one  for  the  west- 
ern district,  at  the  city  of  Pittsburgh,  commencing  on  the 
first  Monday  of  October.  Act  April  26,  1855,  §i,  P.  L.  305, 
4  Purd.  4510,  pi.  12,  as  amended  by  Act  May  5,  1871,  §i  and 
§2,  P.  L.  251,  and  Rule  of  Court,  Appendix,  §21. 

The  return  day  of  appeals  for  the  second  period  of  Phila- 
delphia county  shall  be  the  twelfth  Monday  of  the  term. 
Supreme  Court  Rule  25. 

The  Judges  of  the  Supreme  Court  shall  have  power  to 
prescribe,  by  rule  of  court,  certain  days,  within  the  terms 
thereof,  to  be  holden  as  aforesaid,  for  the  return  of  writs 
from  the  several  judicial  districts  comprised  within  the  re- 
spective districts  of  the  said  Supreme  Court;  and  the 
causes  returned  thereon  shall  be  taken  up  in  the  order  so 
established.  Act  April  14,  1834,  §15,  P.  L.  333,  4  Purd. 
4511,  pi.  22. 

The  said  Supreme  Court  is  authorized  also  to  appoint 
special  return-days  in  the  said  court,  in  term  time  or  vaca- 


ORGANIZATION  OF  COURTS. 


§  7  Supreme  Court — Districts  and  Terms  [Chap.  1, 

tion,  in  each  and  every  of  the  districts  aforesaid,  for  the 
convenience  of  suitors  and  the  furtherance  of  justice;  and 
the  days  and  times  so  appointed,  having  been  entered  upon 
the  records  of  the  said  court  for  the  respective  district, 
shall  thenceforth  be  deemed  legal  return-days  therein.  Act 
April  14,  1834,  §14,  P.  L.  333,  4  Purd.  4511,  pi.  21. 

(C)  Transfer  of  Counties  and  Change  of  Terms 

and  Return-Days.  The  Supreme  Court  are  authorized,  from 
time  to  time  in  their  discretion,  to  change  and  transfer 
from  one  district  to  another  any  county  or  counties  of  the 
commonwealth;  and,  for  the  purpose  of  expediting  the  dis- 
posal of  the  business  of  the  county  or  counties  so  trans- 
ferred and  changed,  to  change  the  return  days  of  the  term 
of  the  several  districts  in  the  commonwealth;  to  change, 
increase  or  diminish  the  number  of  weeks  of  the  respective 
terms,  in  any  district;  and  to  make  all  the  orders,  rules  and 
decrees  necessary  to  carry  the  provisions  of  this  section 
into  effect.  Act  May  5,  1876,  §i,  P.  L.  115,  4  Purd.  4509, 
pi.  ii. 

(D)  Continuance  of  Terms — Special  Terms.  The 

Judges  of  the  said  Supreme  Court  shall  continue,  by  ad- 
journment, the  said  terms  whenever  the  business  which 
may  be  depending  before  them,  at  any  of  the  places  afore- 
said, shall  render  it  necessary,  so  always  as  not  to  inter- 
fere with  their  duties  in  any  other  of  the  districts  aforesaid; 
and  in  addition  thereto,  the  said  Supreme  Court  shall  have 
power  to  order  special  terms,  to  be  holden  at  the  seat  of 
justice  of  any  county  within  this  commonwealth,  for  the 
purpose  of  hearing  arguments  and  the  disposition  of  causes 
pending  in  said  court  from  said  county,  or  any  other  coun- 
ties within  the  same  judicial  district.  Act  April  26,  1855, 
§2,  P.  L.  305,  4  Purd.  4510,  pi.  13. 

(1)     Northern  District.    By  Act  May  5,  1871,  §2,  P.  L.  251,  causes 

10 


SUPREME  COURT. 


§§  1-19]  Districts   and   Terms — Officers  §  8 

from  the  northern  district  may  be  heard  at  such  time  and  place  as  the 
judges  of  the  Supreme  Court  may  assign.  The  northern  district  is 
now  practically  abolished,  no  counties  being  assigned  to  it  by  the  Su- 
preme Court. 

(2)  Terms  and  Return  Days — July  Term.     See  Appendix,  §§20, 
and  21,  for  districts,  terms  and  return  days,  fixed  by  Acts  of  1834, 
1855,  1871,  and  1876,  (B),  (C)  and  (D)  above,  and  the  orders  of  the 
court  thereunder.     See  also  §145  below  for  special  return  days  in 
criminal  cases  as  provided  by  rules  of  court. 

Act  April  14,  1834,  §7,  P.  L.  333,  4  Purd.  4510,  pi.  14,  provides  that 
a  Judge  or  Judges  of  the  Supreme  Court  shall  sit  on  the  last  Monday 
of  July  in  the  eastern  district  to  grant  rules  and  make  necessary 
orders  preparatory  to  hearing,  trial  or  decision  of  any  case  returned 
to  or  depending  in  said  court  there.  Such  Act  is  limited  to  the  pur- 
poses enumerated,  which  does  not  include  the  entry  of  judgment :  Pa. 
Ins.  Co.  v.  Passmore,  4  S.  &  R.  507,  1818;  nor  the  general  transaction 
of  business:  Kearney  v.  McCullough,  5  Bin.  389,  1813.  This  act  is 
not  enforced. 

(3)  Form  of  Writ.    Act  of  June  16,  1836,  §8,  P.  L.  784,  4  Purd. 
4519,  pi.  44,  requires  writs  to  be  in  the  name  of  "The  Commonwealth 
of  Pennsylvania"  and  that  they  shall  bear  teste  in  the  name  of  the 
Chief  Justice,  or,  if  he  be  a  party,  in  the  name  of  one  of  the  other 
judges,  and  be  sealed  with  the  judicial  seal. 

(4)  Effect  of  Division  of  District  on  Jurisdiction  of  Court.    See 
§34  note  (1),  below. 

§8.  —  Officers —  (A)  Prothonotaries — Duties.  A  pro- 
thonotary  or  clerk  shall  be  appointed  for  the  said  Supreme 
Court  at  each  of  the  places  of  holding  the  same  as  afore- 
said; he  shall  have  the  custody  of  the  records  and  seal  of 
the  court  for  the  respective  district,  and  keep  the  same  at 
the  place  of  holding  such  court,  and  in  the  apartments  pro- 
vided by  authority  of  law  for  that  purpose,  and  he  shall 
faithfully  perform,  under  the  direction  of  the  court,  all  the 
duties  appertaining  to  his  office.  Act  April  14,  1834,  §9, 
P.  L.  333,  4  Purd.  4510,  pi.  16. 

(B)  Crier — Tipstaves — Compensation— Payment. 

The  Judges  of  the  Supreme  Court  be  and  they  are  hereby 

ii 


ORGANIZATION  OF  COURTS. 


§  8  Supreme  Court — Officers — Compensation  [Chap.  1, 

authorized  to  appoint  one  crier  and  so  many  tipstaves  as 
said  court  may  be  necessary  in  each  and  every  city  and 
county  in  which  said  court  is  or  shall  be  held,  whose  com- 
pensation shall  be  fixed  by  the  judges  of  the  said  court, 
which  compensation  shall  be  paid  by  the  commonwealth, 
on  bills  approved  by  the  prothonotary  of  said  court,  in  pur- 
suance of  a  rule  to  be  made  for  this  purpose,  which  shall  be 
certified  to  the  auditor  general,  who  shall  draw  his  war- 
rant on  the  state  treasurer  in  favor  of  said  court  crier  and 
tipstaves.  Act  April  24,  1905,  §i,  P.  L.  306. 

(1)  Officers — Attorneys.    Attorneys  are  officers  of  the  Court:  H. 
T.'s  Case,  2  Penny.  84,  1882.    For  admission  of  attorneys,  see  Chap- 
ter II,  §20  et  seq.,  below. 

(2)  Deputy  Prothonotary  —  Clerk  —  Salaries  —  Eastern  District. 
The  prothonotary  of  the  eastern  district  is  authorized  to  appoint  a 
deputy  prothonotary  at  a  salary  of  two  thousand  dollars  per  annum, 
to  perform  all  duties  of  said  prothonotary  when  he  shall  be  absent 
or  unable  to  attend  to  same  by  reason  of  sickness;  and  also  to  ap- 
point one  clerk,  whose  salary  shall  be  eight  hundred  dollars  per  an- 
num:   Act  May  4,  1905,  §1,  P.  L.  384. 

—  Middle  District.    The  prothonotary  of  the  middle  district  is  au- 
thorized to  appoint  a  deputy  prothonotary  at  a  salary  of  seven  hun- 
dred and  twenty  dollars  per  annum:  Id.  §2,  as  amended  by  Act  April 
21, 1911,  P.  L.  81. 

—  Payment  of  Salaries.    Salaries  thus  created  shall  be  paid  quar- 
terly by  warrant  drawn  by  the  auditor  general  on  the  state  treasurer: 
Id.  §3. 

(3)  Compensation  of  Prothonotary.    The  prothonotary  is  com- 
pensated for  his  services  by  fees  provided  by  Act  Feb.  22,  1821, 
§4,  7  Sm.  L.  370,  2  Purd.  1648,  pi.  70,  and  amendment  of  May  19,  1897, 
§3,  P.  L.  67,  2  Purd.  1447,  pi.  50,  §134  (A),  below.    The  Act  of  1897, 
§3,  repeals  so  much  of  the  Act  of  1821  as  applies  to  "fees  on  ap- 
peals," but  it  does  not  affect  the  earlier  fee  bill  in  cases  of  original 
jurisdiction  of  the  appellate  courts,  or  in  other  cases  not  provided  for 
by  the  later  act. 

(4)  Expenses  of  Holding  Court.    By  Act  May  26,  1855,  §12,  P.  L. 
264,  the  city  of  Philadelphia  was  required  to  provide  adequate  court 
rooms  for  the  Supreme  Court,  when  sitting  in  said  city.     This  im- 
poses the  incidental  expenses  of  holding  the  court  on  the  city:  Bar- 

12 


SUPREME  COURT. 


§§  1-19]  Reporter — Appointment — Removal — Duties  §  9 

rington  v.  Phila.,  7  W.  N.  C.  178,  1879.  The  county  of  Allegheny  is 
liable  for  these  expenses  in  the  western  district:  McCalmont  v.  Alle- 
gheny Co.,  29  Pa.  417,  1857.  By  Act  of  April  14,  1834,  §16,  P.  L. 
369,  4  Purd.  4511,  pi.  23,  the  county  of  Dauphin  is  required  to  fit 
up  and  furnish  the  Supreme  Court  rooms  at  Harrisburg.  The  court 
is  given  the  use  of  the  law  library  of  the  state  during  their  sessions 
at  Harrisburg,  the  prothonotary  to  give  bond  for  the  return  of  the 
books. 

§9.  —  Reporter —  (A)  Appointment  and  Commission. 
The  Governor,  within  twenty  days  after  this  act  goes  into 
effect,  shall  nominate  and,  by  and  with  the  advice  and  con- 
sent of  two-thirds  of  all  the  members  of  the  Senate,  when 
in  session,  or  if  not  in  session,  at  the  time  of  such  appoint- 
ment, subject  to  such  advice  and  consent  of  the  Senate  at 
its  next  session,  and,  on  taking  the  security  hereinafter  re- 
quired, shall  commission  for  the  period  of  five  years,  and 
every  five  years  thereafter,  a  person  of  known  integrity 
and  learning  in  the  law,  to  be  reporter  of  the  decisions  of 
the  Supreme  Court  of  this  state.  Act  June  12,  1878,  §i,  P. 
L.  201,  4  Purd.  4456,  pi.  i. 

(B)  Removal  and  Filling  Vacancy.  The  Gover- 
nor may  at  any  time  remove  said  reporter  for  incompetency 
or  a  failure  to  promptly  discharge  his  official  duties,  on  the 
address  of  any  one  or  more  of  the  judges  of  said  court, 
made  to  him  in  writing;  and  shall  have  power  to  fill  any 
vacancy  which  may  occur  by  death,  removal  or  otherwise, 
by  the  appointment  of  a  reporter,  to  continue  for  the  term 
of  five  years  thereafter.  Act  May  19,  1887,  §i,  P.  L.  127, 
4  Purd.  4456,  pi.  2.  See  also  note  (7),  this  section. 

(C)  Duties  of  Reporter.  The  reporter  shall,  when 

required  by  the  court,  attend  its  sessions  and  consultations, 
and,  under  its  direction,  promptly  report  and  prepare  for 
publication  such  of  its  decisions  as  the  court  may  designate ; 
but,  before  the  publication  thereof,  he  shall  submit  the 

13 


ORGANIZATION  OF  COURTS. 


§  9        Supreme  Court — Keporter — Duties — Cases  to  be  Reported   [Chap.  1, 

syllabus  of  every  case  by  him  reported  to  the  judge  who 
delivered  the  opinion,  for  correction  and  approval.  Act 
May  19,  1887,  §i,  P.  L.  127,  4  Purd.  4456,  pi.  4. 

-  (D)  All  Cases  to  be  Reported.  It  shall  be  the  duty 
of  the  state  reporter,  to  report,  in  the  authorized  series  of 
reports,  all  the  cases  decided  by  the  Supreme  Court  of  this 
commonwealth;  those  cases  marked  by  the  several  Justices 
of  said  court  "to  be  reported,"  shall  be  reported  in  the  man- 
ner heretofore  practiced;  those  cases  not  so  marked,  shall 
be  condensed  by  the  omission  therefrom  of  all  parts  of  the 
history,  arguments  and  opinion  of  the  court  below,  not  nec- 
essary to  a  proper  understanding  of  the  points  ruled.  Act 
March  28,  1889,  §i,  P.  L.  22,  4  Purd.  4457,  pi.  5. 

(1)  Security.    The  reporter  must  give  bond  with  at  least  two  suf- 
ficient sureties,  to  be  approved  by  the  Governor,  in  the  sum  of  five 
thousand  dollars,  for  the  correct  and  faithful  performance  of  his  offi- 
cial duties :  Act  June  12,  1878,  §1,  P.  L.  201,  4  Purd.  4456,  pi.  1. 

(2)  Salary.    The  reporter  shall  receive  $5,000  per  annum,  payable 
quarterly :  Acts  of  May  6, 1909,  P.  L.  433 ;  June  12, 1878,  §6,  P.  L.  201. 
The  last  quarterly  payment  is  not  payable  until  the  decisions  for  that 
year  shall  have  been  reported,  but  this  does  not  apply  to  a  reporter 
whose  term  of  office  has  expired:     State  Reporter's  Case,  150  Pa. 
550, 1892.  The  practice  is  to  pay  the  salary  quarterly  without  reference 
to  the  decisions  reported.     The  reporter  is  allowed  the  additional 
sum  of  three  thousand  dollars  per  annum  for  stationery,  clerk  hire 
and  assistance:  Act  of  March  28,  1889,  §2,  P.  L.  22.       This  allow- 
ance was  doubtless  made  as  compensation  for  the  extra  labor  of  re- 
porting all  the  cases,  required  by  that  statute. 

(3)  Cases  Left  Unreported  by  Outgoing  Reporter.    The  decisions 
of  the  Supreme  Court  left  unreported  at  the  end  of  the  term  of  the 
outgoing  reporter  must  be  reported  by  his  successor,  as  the  former  is 
functus  officio:  State  Reporter's  Case,  150  Pa.  550,  1892. 

(4)  Minority    Opinions — Publication    of,    Authorized.    The    re- 
porter was  authorized  to  publish  minority  opinions  on  all  constitu- 
tional questions  by  Act  March  3,  1868,  §1,  P.  L.  46.    It  has  been  the 
practice  for  a  long  time  to  publish  all  opinions. 

(5)  Marking  Cases  to  be  Reported.    It  is  no  longer  the  practice 

14 


SUPREME  COURT. 


§§  1-19]  Reporter — Reports — Style  §  10 

for  the  justices  to  mark  cases  "to  be  reported."    No  case  has  been 
so  marked  since  Barr's  Case,  188  Pa.  122,  1898. 

(6)  Opinions  and  Paper-Books  to  be  Filed.    Act  May  11,  1871,  §1, 
P.  L.  266,  4  Purd.  4520,  requires  Supreme  Court  Judges  to  give  writ- 
ten opinions  on  every  point  on  which  judgment  of  reversal  shall  be  en- 
tered and  in  such  other  cases  as  shall  be  deemed  by  a  majority  to  be 
of  sufficient  importance.     The  Act  of  April  11,  1845,  §2,  P.  L.  374, 
4  Purd.  4520,  requires  the  Judges  of  the  Supreme  Court  to  reduce 
their  opinions  in  every  case  to  writing,  marking  those  deemed  of  suf- 
ficient importance  for  publication,  and  to  file  the  same,  together  with 
one  of  the  paper-books,  amongst  the  records  of  said  court. 

(7)  Removal  of  Reporter.    Article  6,  §4,  of  the  constitution  pro- 
vides, inter  alia,  as  follows:  "Appointed  officers,  other  than  judges 
of  the  courts  of  record,  and  the  superintendent  of  public  instruction, 
may  be  removed  at  the  pleasure  of  the  power  by  which  they  shall 
have  been  appointed,"    (1  Purd.  184,  pi.  133).    It  has  been  held  that 
this  provision  does  not  apply  to  subordinate  ministerial  agents  or  em- 
ployees, and  statutory  regulations  limiting  the  power  of  removal  as 
to  such  are  binding.     See   Com.  v.  Black,  201  Pa.  433,  1902,  re- 
versing 47  Pitts.  L.  J.  (0.  S.)  1,  1900;  overruling  Com.  v.  *Rutherford, 
8  Dist.  349,  1899.    See  also  Com.  v.  Stokley,  4  C.  C.  334,  1887;  Saul  v. 
Scranton,  9  Dist.  156,  1900. 

The  provisions  of  §1  of  Act  May  19,  1887,  following  the  portion 
of  the  section  given  in  (B)  above,  requiring  the  governor  to  remove 
the  reporter  for  failure  to  report  the  cases  as  promptly  as  therein 
stated  seems  to  be  repealed  by  Act  March  28,  1889,  above  (D) :  State 
Reporter's  Case,  150  Pa.  550,  1892. 

§10.  —  Reports —  (A)  Style.  The  said  reports  shall 
be  printed  on  first-class  book  paper,  and  bound  in  good 
full  law  sheep,  in  style  not  inferior  to  volume  one  of  Har- 
ris's reports,  and  shall  be  in  form  and  manner  of  execution 
similar  thereto,  and  shall  contain  not  less  than  seven  hun- 
dred pages  of  printed  matter  in  each  volume,  including  an 
index  and  table  of  cases  similar  to  those  in  said  volume, 
which  shall  be  prepared  and  furnished  by  said  reporter; 
and  there  shall  be  printed  on  the  back  of  each  of  said  vol- 
umes, the  words  "Pennsylvania  State  Reports,"  the  num- 
ber of  the  volume  in  the  series  of  said  State  reports,  the 

15 


ORGANIZATION  OF  COURTS. 


§  10  Supreme  Court — Reports — Publication  of  [Chap.  1, 

name  of  the  reporter,  and  the  number  of  the  volume  in  his 
series,  with  the  year  when  published.  Act  June  12,  1878, 
§5,  P.  L.  201,  4  Purd.  4457,  pi.  8. 

(B)  Published  by  Contract.     The  reporter  shall 

have  no  pecuniary  interest  in  such  reports,  but  the  same 
shall  be  published,  under  the  supervision  of  the  reporter, 
by  contract,  to  be  entered  into  by  the  reporter,  secretary  of 
the  commonwealth,  and  auditor-general,  with  such  person 
or  persons  who,  in  addition  to  furnishing  the  state  li- 
brarian, for  library  and  exchange,  fifty  copies  of  each  vol- 
ume, shall  agree  to  publish  and  sell  the  said  reports  on 
terms  the  most  advantageous  to  the  public  and  at  the 
lowest  price;  which  contract  shall  be  for  a  term  of  ten 
years,  and  shall  provide  that  every  volume  printed  under 
such  contract  shall  be  stereotyped,  and  the  plates  thereof 
preserved,  and  be  delivered  to  the  secretary  of  the  com- 
monwealth as  the  property  of  the  state,  within  three  years 
after  the  expiration  of  the  contract;  and  shall  further  pro- 
vide that  all  volumes  published  under  such  contract  shall 
be  kept  by  the  contractor  at  some  convenient  place  within 
this  commonwealth,  to  be  designated  by  the  said  secre- 
tary, for  sale,  at  the  contract  price,  to  all  citizens  of  the 
commonwealth  desiring  the  same,  during  the  term  of  his 
said  contract,  and  for  five  years  thereafter.  Act  June  12, 
1878,  §7,  P.  L.  201,  4  Purd.  4457,  pi.  10. 

(C)  Advertisement  for  Proposals.    Before  letting 

any  contract  as  provided  by  this  act,  the  secretary  of  the 
commonwealth  shall  give  notice  of  the  time  and  place  of 
awarding  the  contract,  by  advertisement  in  the  newspaper 
having  the  greatest  circulation  in  each  of  the  cities  of 
Philadelphia  and  Pittsburgh,  once  a  week  for  six  consecu- 
tive weeks  immediately  preceding  the  letting  of  such  con- 
tract, and  shall  receive  sealed  proposals  or  bids,  and  shall 

16 


SUPREME  COURT. 


§§  1-19]  Reports — Publication  of — Powers  of  Court  §§  10,  11 

award  the  contract  to  the  lowest  bidder  who  can  give  the 
security  required  by  the  ninth  section  of  this  act.  Act 
June  12,  1878,  §8,  P.  L.  201,  4  Purd.  4457,  pi.  n. 

—  —  (D)  Contractors  to  Give  Bond.  The  person  to 
whom  any  contract  shall  be  awarded  under  this  act  shall,  at 
the  time  of  executing  said  contract,  give  bond  to  the  com- 
monwealth, with  at  least  three  sureties,  to  be  approved  by 
the  Governor,  in  the  sum  of  twenty  thousand  dollars,  condi- 
tioned for  the  faithful  performance  of  said  contract.  Act 
June  12,  1878,  §9,  P.  L.  201,  4  Purd.  4457,  pi.  12. 

(E)  Copyright.  It  shall  not  be  lawful  for  the  re- 
porter, or  any  other  person,  to  secure  or  obtain  any  copy- 
right of  said  reports.  Act  June  12,  1878,  §11,  P.  L.  201, 
4  Purd.  4458,  pi.  14. 

(1)  Numbering  of  Volumes.     The  number  of  the  volume  in  the 
reporter's  series  was  dropped,  beginning  with  Monaghan's  Reports, 
and  a  rule  of  court  was  subsequently  made  requiring  all  citations  to 
be  by  the  number  of  the  state  series:  Supreme  Court  Rule  37,  §200, 
below.    The  change  from  the  old  to  the  new  method  of  citation  is  re- 
viewed and  commended  in  the  valuable  address  of  Mr.  Chief  Justice 
Mitchell,  "Hints  upon  Practice  in  Appeals,"  delivered  before  the 
alumni  of  the  Law  Department  of  the  University  of  Pennsylvania  and 
published  in  part  in  43  Am.  L.  Reg.  N.  S.,  337,  349,  1904,  and  in  52 
Pitts.  L.  J.  (N.  S.)  35,  81,  89,  1904. 

(2)  Practice  as  to  Copyright.    The  practice  is  to  copyright  the  re- 
ports in  the  name  of  the  secretary  of  the  commonwealth  for  the  time 
being  "for  the  State  of  Pennsylvania." 

§n.  —  Powers  of  Court—  (A)  Generally.  The  said 
judges  ....  shall  have  full  power  to  hold  the  said 
court,  and  therein  to  hear  and  determine  all  causes,  mat- 
ters and  things,  cognizable  in  the  said  court;  .  .  .  and 
generally  shall  minister  justice  to  all  persons,  and  exercise 
the  jurisdictions  and  powers  hereby  granted,  concerning 
all  and  singular  the  premises,  according  to  law,  as  fully  and 

17 


ORGANIZATION  OF  COURTS. 


§  11  Supreme    Court — General    Powers  [Chap.  1, 

amply,  to  all  intents  and  purposes  whatsoever,  as  the  jus- 
tices of  the  court  of  king's  bench,  common  pleas  and  ex- 
chequer, at  Westminster,  or  any  of  them,  can  or  may  do. 
Act  May  22,  1722,  §13,  i  Sm.  L.  140,  4  Purd.  4512,  pi.  26. 

(B)  To  Devise  New  Writs.  It  shall  be  the  duty 

of  the  Supreme  Court,  at  their  sessions  in  bane,  from  time 
to  time  to  devise  and  establish,  by  rule  of  court,  such  new 
writs  and  forms  of  proceedings  as  in  their  opinion  shall  be 
necessary  or  convenient  to  the  full,  direct  and  uniform  exe- 
cution of  the  powers  and  jurisdiction  possessed  by  the  said 
court,  or  by  the  courts  of  common  pleas,  district  courts, 
orphans'  courts  [or  registers'  courts].  Act  June  16, 
1836,  §3,  P.  L.  785,  4  Purd.  4518,  pi.  39- 

Provided,  That  nothing  herein  contained,  shall  be  deem- 
ed to  authorize  the  said  court  to  enlarge,  abridge  or  alter 
the  jurisdiction  of  any  of  the  courts,  or  to  impair  the  right 
of  trial  by  jury  or  to  dispense  with  or  to  supply  the  use  of 
any  form  of  proceeding,  which  shall  be  made  necessary  by 
any  Act  of  Assembly.  Act  June  16,  1836,  §4,  P.  L.  785, 
4  Purd.  4518,  pi.  40. 

-  (C)  To  Award  Process  to  Collect  Costs,  Fines, 
etc.  The  Supreme  Court  of  this  commonwealth  .... 
shall  have  power  and  is  required  to  issue  execution  or 
other  process  for  the  recovery  of  costs  which  have  accrued, 
or  may  accrue,  in  said  Supreme  Court,  as  well  as  in  all  cases 
which  have  been  heretofore  decided.  Act  June  16,  1836, 
§i,  P.  L.  785,  4  Purd.  45M-I6,  pi.  30. 

Each  of  the  said  [appellate  and  lower]  courts  shall  have 
power  to  award  process  to  levy  and  recover  such  fines,  for- 
feitures and  amercements  as  shall  be  imposed,  taxed  or 


18 


SUPREME  COURT. 


§§  1-19]  General  Powers  §  11 

adjudged  by  them  respectively.  Act  June  16,  1836,  §20,  P. 
L.  785,  4  Purd.  4520,  pi.  48. 

And  also  shall  award  process  for  levying  as  well  of  such 
fines,  forfeitures  and  amerciaments  as  shall  be  estreated 
into  the  said  Supreme  Court,  as  of  the  fines,  forfeitures  and 
amerciaments  which  shall  be  lost,  taxed  and  set  there  and 
not  paid  to  the  uses  (to  which)  they  are  or  shall  be  appro- 
priated. Act  May  22,  1722,  §13,  i  Sm.  L.  131,  4  Purd.  4512, 
pi.  26. 

-  (D)  To  Establish  Rules  of  Practice.  Each  of  the 
said  courts  shall  have  full  power  and  authority  to  establish 
such  rules  for  regulating  the  practice  thereof,  respectively, 
and  for  expediting  the  determination  of  suits,  causes  and 
proceedings  therein,  as,  in  their  discretion,  they  shall  judge 
necessary  or  proper:  Provided,  That  such  rules  shall  not 
be  inconsistent  with  the  constitution  and  laws  of  this  com- 
monwealth. Act  June  16,  1836,  §21,  P.  L.  785,  4  Purd. 
4520,  pi.  49. 

(E)  To  Issue  Subpoenas  to  Witnesses.    Each  of 

the  said  courts  is  empowered  to  issue  writs  of  subpoena, 
under  their  official  seal,  into  any  county  of  this  common- 
wealth, to  summon  and  bring  before  the  respective  court 
any  person  to  give  testimony  in  any  cause  or  matter  de- 
pending before  them,  under  the  penalties  hitherto  appoint- 
ed and  allowed  in  any  such  case  by  the  laws  of  this  com- 
monwealth. Act  June  16,  1836,  §22,  P.  L.  785,  4  Purd. 
4520,  pi.  50. 

(F)  To  Arrange  Terms  and  Return-Days.     See 

§7  (B),  (C)  and  (D),  above. 

—   (G)  To  Have  Seal  in  Each  District — Renewal. 

The  Supreme  Court  shall  have,  in  each  of  the  dis- 
tricts aforesaid,  a  seal,  for  the  use  of  the  said  court,  hav- 
ing engraved  thereon  the  arms  of  this  commonwealth, 

19 


ORGANIZATION  OF  COURTS. 


§  11  Supreme  Court — General  Powers  [Chap.  1, 


underneath  the  arms  the  figures  "1776",  and  around  the 
edge  and  near  the  extremity  or  margin  thereof,  the  words 
following,  "Seal  of  the  Supreme  Court  of  Pennsylvania," 
and  such  other  words  and  devices  as  are  inscribed  on  the 
seals  of  the  said  court  now  in  use;  and  the  said  seals  may 
be  renewed  under  the  direction  of  the  said  court  as  often 
as  occasion  shall  require.  Act  April  14,  1834,  §8,  P.  L.  333, 
4  Purd.  4510,  pi.  15. 

(1)  Notice  of  New  Writs.    Section  5  of  the  above  Act  of  1836, 
Purd.  4518,  provides  for  notice  to  be  given  the  judges  of  the  subor- 
dinate courts  and  the  Governor  of  new  writs. 

(2)  Terms  and  Return-Days.   For  power  of  Supreme  Court  to  fix 
terms  and  return-days,  see  §7,  above. 

(3)  General  Powers  of  Court,     (a)  The  judicial  authority  of  ap- 
pellate courts  extends  to  the  review  and  correction  of  all  proceedings 
of  all  inferior  courts,  except  where  such  review  is  taken  away  by 
statute,  or  by  necessary  implication :  Anville  Twp.  Overseers  v.  Smith, 
2  S.  &  R.  363,  1816;  Gosline  v.  Place,  32  Pa.  520,  1859;  Chase  v. 
Miller,  41  Pa.  403,  1862;  Schmuck  v.  Hartman,  222  Pa.  190,  1908; 
(b)  or  by  case-stated  without  reserving  the  right  of  appeal:  Chase 
v.  Miller,  41  Pa.  403,  1862;  (c)  the  court  may  issue  all  sorts  of  pro- 
cess and  use  and  adopt  all  sorts  of  legal  forms  that  are  necessary 
to  give  effect  to  this  supervisory  authority:  Gosline  v.  Place,  32  Pa. 
520,  1859;  Com.  v.  Shortall,  206  Pa.  165,  178,  1903;  Schmuck  v.  Hart- 
man, 222  Pa.  190,  1908;  (d)  the  court  cannot  acquire  jurisdiction  by 
consent  of  parties:  McKee  v.  Sanford,  25  Pa.  105,  1855;  Watkins  v. 
Hughes,  206  Pa.  526,  1903 ;  (e)  the  Act  of  1836,  above,  is  a  re-enact- 
ment of  the  Act  of  May  22,  1722,  §13,  1  Sm.  L.  140,  4  Purd.  4512, 
pi.  26 :  Chase  v.  Miller,  41  Pa.  403,  1862. 

For  original  jurisdiction  of  Supreme  Court,  see  Chapter  III,  §§35-9, 
and  for  appellate  jurisdiction,  see  Chapters  IV  to  VI,  §42  et  seq.,  be- 
low. 

(4)  Power  to  Make  Rules  of  Practice,    (a)  The  power  to  establish 
rules  of  practice  not  inconsistent  with  the  constitution  or  laws  of  the 
state  is  inherent  in  the  Supreme  Court,  without  the  necessity  of  statu- 
tory provision:  Dubois  v.  Turner,  4  Yeates  361,  1807;  Peterson  v.  R. 
R.,  177  Pa.  335, 1896 ;  (b)  and  rules  made  by  Supreme  Court  for  lower 
courts  are  binding  in  latter  without  the  necessity  of  formal  adoption 
by  them:   Durborrow's  Appeal,  87  Pa.  237,  1878;   Rauschmeyer  v. 

2O 


SUPERIOR  COURT. 


§§  1-19]  How  Constituted — Election  §  12 

Bank,  1  C.  P.  Rep.  17,  1879.  (c)  Under  power  given  by  Act  of  1836, 
the  rules  governing  equity  practice  in  Pennsylvania  were  established. 
These  rules  have  all  the  force  and  affect  of  a  statute,  and  the  lower 
courts  cannot  suspend  them  or  adopt  rules  inconsistent  therewith: 
Gibbons 's  Ap.,  104  Pa.  587, 1884;  Cassidy  v.  Knapp,  167  Pa.  305, 1895; 
Chester  Tr.  Co.  v.  E.  R.,  180  Pa.  432,  1897;  Thrall  v.  Williamsport,  4 
Pa.  Super.  165,  1897;  Palethorp  v.  Palethorp,  184  Pa.  585,  1898;  Bar- 
lott  v.  Forney,  187  Pa.  301,  1898;  Wilson  v.  Keller,  195  Pa.  98,  1900; 
North  v.  Pantall,  197  Pa.  303,  1900;  Shamokin  Co.  v.  John,  18 
Pa.  Super.  498,  1901;  Cooke  v.  Telegraph  Co.,  21  Pa.  Super.  43,  1902; 
Beatty  v.  Harris,  205  Pa.  377, 1903;  Yetter  v.  R.  R.,  206  Pa.  485, 1903; 
Green  v.  Paint  Co.,  25  Pa.  Super.  415, 1904;  Jones  v.  Weir,  213  Pa.  135, 
1905;  McMellen  v.  Williamson,  32  Pa.  Super.  263,  1906;  Mason  v. 
Linn,  218  Pa.  161,  1907;  Groff  v.  Trust  Co.,  32  Pa.  Super.  416,  1907. 

§12.  Superior  Court —  (A)  How  Constituted — Elec- 
tion. A  court  of  intermediate  appeal  is  hereby  established 
to  be  called  The  Superior  Court,  and  to  be  composed  of 
seven  judges  learned  in  the  law,  who  shall  be  elected  by  the 
qualified  electors  of  the  state,  except  as  they  may  be  ap- 
pointed by  the  Governor  under  the  provisions  of  this  act. 
Act  June  24,  1895,  §i,  P.  L.  212,  4  Purd.  4498,  pi.  i. 

Succeeding  elections  for  the  said  office  shall  be  held  at 
the  general  election  preceding  the  expiration  of  the  term  of 
any  judge,  or  at  the  proper  election  following  a  vacancy  by 
death  or  otherwise.  The  vote  for  said  office  shall  be  cast 
and  counted  according  to  law,  and  return  thereof  shall  be 
made  without  delay  by  the  prothonotary  of  every  county 
in  the  state  to  the  secretary  of  the  commonwealth.  The 
secretary  shall  thereupon  ascertain  the  result  and  certify 
it  to  the  Governor,  who  shall  issue  a  proclamation  declar- 
ing the  successful  candidate  or  candidates,  and  shall  com- 
mission him  or  them  for  the  term  above  named  [(C)  this 
section,  below].  Act  June  24,  1895,  §J>  p-  L.  212,  4  Purd. 

4499,  pl-  3- 

All  judges  elected  by  the  electors  of  the  state  at  large 

21 


ORGANIZATION  OF  COURTS. 


{  12  Superior  Court — Election — Term — Quorum  [Chap.  1, 

may  be  elected  at  either  a  general  or  municipal  election,  as 
circumstances  may  require.  Const.,  art.  8,  §3,  as  amended 
Nov.  2.,  1909. 

—  (B)   Election  by  Limited  Vote.     Whenever  here- 
after four  or  more  Judges  of  the  Superior  Court  are  to  be 
elected  for  the  same  term  of  service,  and  whenever,  after 
the  first  Monday  of  January,  one  thousand  nine  hundred 
and  nine,  two  or  more  judges  of  said  court  are  to  be  elected 
for  the  same  term  of  service,  each  elector  may  vote  for  as 
many  persons,  less  one,  as  there  are  judges  to  be  chosen 
at  said  election.    Act  May  5,  1899,  §8,  P.  L.  248,  amended 
by  Act  May  24,  1901,  §i,  P.  L.  293,  4  Purd.  4499,  pi.  4. 

—  (C)  Term  of  Office.       The  term  of  office  of  the 
elected  judges  of  the  court  shall  be  ten  years,  to  begin  on 
the  first  Monday  of  January  following  their  election.    Act 
June  24,  1895,  §i,  P.  L.  212,  4  Purd.  4498,  pi.  i. 

—  (D)  Quorum.    Whenever  it  is  reasonably  possible  the 
full  bench  of  seven  judges  shall  sit  at  the  hearing  and  shall 
also  take  part  in  the  examination  and  decision  of  each  ap- 
peal, but  four  judges  shall  be  a  quorum  and  may  conduct 
the  business  of  the  court.    Act  June  24,  1895,  §2,  P.  L.  212, 
4  Purd.  4504,  pi.  35. 

(1)  Constitutionality  of  Limited  Vote.    The  constitutional  right 
of  electors  to  vote  at  all  elections  does  not  give  absolute  right  to 
vote  for  every  candidate  or  group  of  candidates  for  same  office;  §1, 
Act  1901  is  therefore  constitutional :  Com.  v.  Reeder,  171  Pa.  505, 1895. 

(2)  Constitutional    Amendments    of    1909.      For    constitutional 
amendments  of  1909,  prescribing  the  times  for  holding  the  general 
and  municipal  elections,  etc.,  see  §4,  note  (2),  above. 

§13.  —  President  Judge —  (A)  Commission,  Priority 
of.  The  rank,  title  and  position  of  President  Judge  of  the 
said  Superior  Court  shall  be  held  by  that  elected  member 
of  the  court  whose  commission  shall  have  priority,  either  in 

22 


SUPERIOR  COURT. 


§§  1-19]    President  Judge — Lot — Vacancies  in  Court — Compensation   §§  13-15 

time  or  as  the  result  of  the  lot.  And  if  the  President  Judge 
shall  be  re-elected,  or  if  any  succeeding  President  Judge 
shall  be  re-elected,  he  shall  continue  to  hold  the  rank,  title 
and  position.  Act  June  24,  1895,  §2,  P.  L.  212,  4  Purd. 
4499,  Pi-  7- 

(B)  Determination  by  Lot.    As  soon  as  convenient 

after  the  first  election,  the  successful  candidates  shall  cast 
lots  for  priority  of  commission,  and  certify  the  result  to  the 
Governor,  who  shall  issue  their  commissions  in  accord- 
ance therewith,  and  the  same  course  shall  be  pursued 
whenever  thereafter  two  or  more  judges  are  elected  at  the 
same  time.  Act  June  24,  1895,  §2,  P.  L.  212,  4  Purd.  4499, 
pi.  6. 

§14.  —  Vacancies  Filled  by  Governor — Subsequent 
Election — Term.  Whenever  a  vacancy  occurs  by  death  or 
otherwise  in  the  said  office,  the  Governor  may  appoint  in 
the  manner  and  for  the  period  fixed  by  section  8  of  article 
4  of  the  constitution,  and  the  person  elected  thereafter 
to  the  vacant  seat  shall  hold  his  office  for  the  term  of  ten 
years,  beginning  on  the  first  Monday  in  January  following 
his  election.  Act  June  24,  1895,  §i,  P.  L.  212,  4  Purd.  4499, 
pl-5- 

(1)  Constitutional  Provision.    For  Art.  4,  §  8,  of  the  Constitution^ 
see  §4,  above. 

(2)  End  of  Term.    The  term  ends  on  the  first  Monday  of  January 
ten  years  later  though  such  Monday  falls  on  a  later  day  of  the  month. 
Lewis's  Case,  29  Pa.  518,  1857. 

§15.  -  Compensation —  (A)  Salary.  The  annual  sal- 
ary of  each  judge  of  the  Superior  Court  shall  be  nine  thou- 
sand dollars.  Act  April  14,  1903,  §2  P.  L.,  175,  4  Purd. 
4363,  pl.  75- 

23 


ORGANIZATION  OF  COURTS. 


§15  Superior  Court — Compensation  [Chap.  1, 

—    —    (B)    Allowance    for    Clerical    Assistance.      To 

facilitate  the  labors  of  the  Judges  of  the  Superior  Court, 
the  said  judges  are  hereby  authorized  to  employ  the  help 
of  stenographers,  typewriters  or  other  clerks,  provided  that 
the  cost  of  such  help  shall  not  exceed  the  sum  of  fifteen 
hundred  dollars  per  annum  for  any  member  of  said 
court.  The  cost  of  such  help  shall  be  paid  by  the  judge 
employing  the  same  and  shall  be  repaid  to  him  by  the  state 
treasurer  on  his  certificate  of  the  amount  actually  paid  by 
him  during  the  preceding  month  for  clerk  hire.  Act  April 

17,  I9°5,  §i,  p-  L-  J85- 

(1)  Payment  of  Salary.    The  annual  salary  of  the  Judges  shall 
be  paid  monthly.    Act  April  14,  1903,  §5,  P.  L.  175,  4  Purd.  4364, 
pi.  78.    As  to  salary  on  retirement  by  reason  of  age  or  disability,  see 
§6,  note  (4),  above. 

(2)  Cost  of  Rooms,  etc.    Each  county  in  which  the  court  may  sit 
shall  furnish,  at  the  expense  of  the  state,  suitable  accommodations 
and  facilities  for  the  meetings  and  business  of  the  courts.    The  cost 
thereof  shall  first  be  paid  by  the  county  commissioners  and  repaid 
to  them  by  the  state,  upon  the  approval  of  the  bills  by  the  said  court : 
Act  June  24,  1895,  §3,  P.  L.  212,  4  Purd.  4500,  pi.  14. 

(3)  Supplies.    The  necessary  dockets,  books,  stationery  and  mis- 
cellaneous printing  shall  be  obtained  and  furnished  by  the  superin- 
tendent of  public  printing  and  binding,  and  the  other  necessary  sup- 
plies, for  the  use  of  the  said  court,  shall  be  obtained  and  furnished 
by  the  board  of  public  grounds  and  buildings,  in  the  same  manner  as 
said  materials  and  supplies  are  furnished  to  the  several  departments 
of  the  state  government.    Said  materials  and  supplies  to  be  furnished 
upon  the  requisitions  of  the  prothonotaries  of  the  said  court:  Act 
March  14, 1905,  §1,  P.  L.  39.    This  Act  was  an  amendment  of  the  Act 
of  June  24,  1895,  §3,  P.  L.  213,  4  Purd.  4500,  pi.  15,  which  had  pro- 
vided that  the  supplies  be  furnished  by  the  secretary  of  the  com- 
monwealth.   The  Act  of  May  5,  1899,  §9,  P.  L.  248,  4  Purd.  4500,  pi. 
16,  re-enacted  the  provision  of  the  Act  of  1895  as  to  supplies,  and 
added  a  provision  as  to  allowance  to  the  judges  for  clerical  assist- 
ance.   The  Act  of  April  17,  1905,  §1,  P.  L.  185,  amended  §9  of  the 
Act  of  1899,  by  increasing  the  allowance,  and  re-enacted  the  provis- 
ion as  to  supplies  without  amendment.     As  the  sole  purpose  of  the 
Act  April  17,  1905,  seems  to  be  to  amend  Act  of  1899  as  to  allow- 

24 


SUPERIOR  COURT. 


§§  1-19]  Districts  and  Terms — Hearing  Appeals — Officers  §§  16,17 

ance  for  clerical  assistance,  it  would  seem  that  the  Act  of  March  14, 
1905,  was  not  affected  by  the  Act  of  April  17,  1905,  although  incon- 
sistent therewith. 

§16.    —  Districts   and    Terms — Hearing    of   Appeals. 

The  said  Superior  Court  may  fix  the  time  and  places  when 
and  where  it  will  meet,  except  that  it  must  meet  at  least 
once  a  year  in  the  cities  of  Philadelphia,  Pittsburgh,  Har- 
risburg,  Scranton  and  Williamsport.  Act  June  24,  1895, 
§3,  P.  L.  212,  4  Purd.  4499,  pi.  n. 

The  said  court  shall  also  have  power  to  fix  general  or 
special  return-days,  to  regulate  the  terms  and  to  make  any 
other  order  which  may  be  proper  to  aid  the  convenient 
transaction  of  its  business.  Copies  of  its  orders  shall  be 
sent  to  the  prothonotary  of  each  county  in  the  state.  Act 
June  24,  1895,  §5,  P.  L.  212,  4  Purd.  4504,  pi.  34. 

So  far  as  practicable,  appeals  shall  be  heard  in  the  order 
of  time  in  which  they  are  taken,  and  as  speedily  as  a  due 
regard  for  the  convenience  of  the  parties  and  the  court  will 
allow.  And  it  shall  be  the  duty  of  the  court  to  make  such 
rules  as  will  accomplish  these  two  results.  Act  June  24, 
1895,  §3,  P.  L.  212,  4  Purd.  4504,  pi.  36. 

(1)  Arrangement  of  Terms  and  Eeturn  Days.  For  arrangement 
of  districts,  terms  and  return  days,  as  fixed  by  Superior  Court  Rule 
1,  see  Appendix  §22.  See  also  §145  for  special  return  days  in  criminal 
cases. 

§17.     —Officers —   (A)    Prothonotaries — Duties.     The 

prothonotaries  of  the  Supreme  Court  at  Philadelphia,  Har- 
risburg  and  Pittsburgh  shall  be  ex-officio  the  prothono- 
taries of  the  Superior  Court,  and,  at  each  of  the  other 
places  where  the  said  court  may  sit,  the  said  court  may 
appoint  a  prothonotary  who  shall  hold  office  during  the 
pleasure  of  the  court.  They  shall  perform  such  duties  and 
exercise  such  powers  in  reference  to  its  records  and  busi- 

25 


ORGANIZATION  OF  COURTS. 


§§  17-19      Superior  Court — Officers — Reporter — Powers  of  Court    [Chap.  1, 

ness  as  the  court  may  direct.  Act  June  24,  1895,  §4,  P.  L. 
212,  4  Purd.  4499,  pi.  9. 

(B)  Crier — Tipstaves — Compensation.  For  each 

place  at  which  the  court  may  sit,  it  may  appoint  a  crier  and 
the  necessary  tipstaves  and  may  fix  their  compensation, 
which  shall  be  paid  by  the  state.  Act  June  24,  1895,  §3,  P. 
L.  212,  4  Purd.  4499,  pi.  10. 

(1)  Compensation  of  Prothonotary.  See  §8,  note  (3),  above,  and 
§134  (A),  below. 

§18.  —  Reporter — Assistant  Reporter — Salary.  All 
the  decisions  of  the  said  court  shall  be  reported  by  the 
state  reporter  in  volumes  to  be  entitled  "Pennsylvania 
Superior  Court  Reports,"  and  for  this  service  the  present 
reporter  and  his  successors  shall  be  allowed  to  employ  an 
assistant  at  a  salary  of  not  more  than  two  thousand  dol- 
lars per  year.  Act  June  24,  1895,  §6,  P.  L.  212,  4  Purd. 
4505,  pi.  42. 

From  and  after  the  twenty-first  day  of  March,  Anno 
Domini  one  thousand  nine  hundred  and  ten,  the  salary  of 
the  assistant  to  the  reporter  of  the  decisions  of  the  Su- 
preme Court  shall  be  three  thousand  dollars  per  annum. 
Act  May  6,  1909,  §2,  P.  L.  433,  5  Purd.  6048,  pi.  2. 

(1)  Reports.  The  provisions  of  the  remainder  of  this  section  for 
copyright  and  publication  of  reports  are  the  same  as  those  governing 
the  Supreme  Court  reports,  §10,  above. 

§19.  —  Powers — Writs  and  Process — Service— Prac- 
tice— Seal.  The  said  Superior  Court  shall  have  power 
to  grant,  under  its  judicial  seal,  every  lawful  writ  and 
process  necessary  or  suitable  for  the  exercise  of 
the  jurisdiction  given  by  this  act  and  for  the  enforce- 
ment of  any  order  or  decree  which  it  may  make, 

26 


SUPERIOR  COURT. 


§§  1-19]  General  Powers  §  19 

except  that  its  judgment  or  decrees  for  the  payment  of 
money  shall  not  be  liens  upon  property,  except  as  here- 
after provided,  and  shall  only  be  enforced  by  proper  pro- 
ceedings in  the  court  from  which  the  appeal  was  taken; 
and,  after  the  record  has  been  returned  thereto,  the  writs 
and  process  of  the  Superior  Court  may  be  issued  to  and 
may  be  served  and  enforced  in  any  county  of  the  common- 
wealth by  the  sheriff  of  said  county.  Act  June  24,  1895,  §5, 
P.  L.  212,  4  Purd.  4504,  pi.  33. 

The  practice  in  the  said  Superior  Court  shall  be  governed 
by  the  rules  which  do  now  or  may  hereafter  govern  the 
practice  in  the  Supreme  Court,  so  far  as  the  same  may  be 
applicable,  except  that  no  short  list  or  hour  list,  as  provided 
by  said  rules,  shall  be  enforced,  and  except  also  that  the 
Superior  Court  may,  in  its  discretion,  make  such  other  or 
different  rules  as  it  may  consider  to  be  necessary  or  desir- 
able upon  any  subject  connected  with  its  jurisdiction  or  its 
procedure.  Act  June  24,  1895,  §8,  P.  L.  212,  4  Purd.  4504, 

pl-  37- 

In  all  cases  where  these  rules  do  not  apply,  the  practice 
of  this  court  shall  be  regulated  by  the  then  present  practice 
of  the  Supreme  Court  of  Pennsylvania,  so  far  as  the  same 
may  be  applied.  Superior  Court  Rule  44. 

(1)  General  Powers.  For  power  of  Superior  Court  to  fix  terms  and 
return-days,  see  §16,  above.  For  jurisdiction  of  said  court,  see  Chap- 
ters m  to  VI,  inclusive,  §§40-125. 


27 


ADMISSION  OF  ATTORNEYS. 


§  20  Synopsis  of  Chapter — State  Board  of  Examiners       [Chap.  2, 

CHAPTER  II. 

ADMISSION  OF  ATTORNEYS. 

§20.     State  Board  of  Law  Examiners. 

(A)  Established. 

(B)  Term  of  Office— Duties— Assistants— Officers. 

(C)  Circular  of  Information. 
§21.    Supreme  Court  Requirements. 

Recommendation  of  State  Board. 

§22.        Attorneys  who  Have  Practiced  Two  Years  at  Date  of  Rule. 
§23.        Students  Registered  at  Date  of  Rule. 
§24.        Registration. 

Preliminary  Examination. 
§25.  Certificate— Fees. 

§26.        Final  Examination. 

Preliminary  Requirements. 
§27.  Subjects  Required. 

§28.  How,  When  and  Where  Conducted. 

§29.        Attorneys  from  Other  States. 

Of  Five  Years'   Standing. 
§30.  Of  One  Year's  Standing. 

§31.  Of  Less  Than  One  Year's  Standing. 

§32.        Practice  on  Admission. 
§33.    Superior  Court  Requirements. 

(A)  Members  of  Bar  of  Supreme  Court. 

(B)  Members  of  Common  Pleas  of  Two  Years'  Standing. 

(C)  Applicants   for   Admission   Generally — Recommendation 

of  State  Board. 

(D)  Attorneys  from  other  States. 

§20.  State  Board  of  Law  Examiners —  (A)  Estab- 
lished. There  is  hereby  established  a  Board  of  Law  Ex- 
aminers to  whom  all  applications  for  admission  to  the  bar 
of  this  court  shall  be  referred,  for  examination  and  report, 
before  action  by  the  court.  Supreme  Court  Order,  May 
26,  1902. 

28 


ADMISSION  OF  ATTORNEYS. 


§§  20-33]  State  Board  of  Examiners  §  20 

—  (B)  Term  of  Office — Duties — Assistants— Officers. 
The  State  Board  of  Law  Examiners  shall  hold  office  dur- 
ing the  pleasure  of  the  court  for  a  term  not  exceeding  five 
years,  except  that  of  the  members  of  the  Board  now  ap- 
pointed one  shall  withdraw  at  the  end  of  each  year,  such 
withdrawals  to  be  made  in  the  order  of  seniority  of  admis- 
sion to  the  bar.     The  members  of  the  Board  shall  serve 
without  compensation,  but  shall  be  reimbursed  their  trav- 
eling and  other  expenses.     The  Board  may,  with  the  ap- 
proval of  the  court,  appoint  examiners  to  superintend  the 
conduct  of  the  examinations  and  to  report  upon  the  an- 
swers of  the  candidates,  but  the  members  of  the  Board 
shall    be  responsible  to  the  court  for  the  enforcement  oi 
these  rules  and  the  proper  ascertainment  of  the  results  of 
the  examinations.    The  Board  may  also,  with  the  approval 
of  the  court,  appoint  a  secretary  and  a  treasurer,  or  the 
same  person  may  hold  both  offices,  and  they  may  pay  to 
each  examiner  and  to  the  secretary  and  treasurer,  out  of 
the  fees  received,  and  after  deduction  of  the  necessary  ex- 
penses, a  reasonable  compensation.     When  application  is 
made  for  a  suspension  of  the  rules  in  any  particular  case, 
the  Board  of  Examiners  shall  report  such  application  to 
the  Supreme  Court  with  a  recommendation  upon  the  mer- 
its.   Supreme  Court  Rule  7. 

—  (C)  Circular  of  Information.      It  shall  be  the  duty 
of  the  State  Board  of  Law  Examiners  to  prepare  a  paper 
for  gratuitous  distribution  among  intending  applicants  for 
registration  or  admission,  containing  detailed  information 
as  to  the  subjects  of  examination.    Supreme  Court  Rule  8. 

(1)  Members  of  Board  and  Duties,  (a)  The  following  board  of 
five  examiners  was  appointed:  Messrs.  Samuel  Dickson,  Philadelphia, 
Win.  Scott,  Allegheny,  Wm.  U.  Hensel,  Lancaster,  Simon  P.  Wol- 
verton,  Northumberland,  Robert  Snodgrass,  Dauphin,  with  authority 

29 


ADMISSION  OF  ATTORNEYS. 


§  21  Law  Examiners — Recommendation  by,  Necessary        [Chap.  2, 

to  report  and  recommend  to  the  court  for  adoption  a  plan  of  opera- 
tions, including  the  term  and  conditions  of  studentship;  a  course  of 
study  for  the  preliminary  and  final  examinations,  the  conditions  and 
requirements  of  application  to  the  board;  rules  for  the  meeting  and 
action  of  the  board,  including  the  appointment  of  a  secretary,  treas- 
urer, clerk  or  clerks,  provision  for  expenses,  and  compensation,  etc.; 
such  modifications  of  the  present  rules  of  court  as  may  be  necessary 
to  put  the  new  conditions  into  operation;  and  such  further  sugges- 
tions or  recommendations  as  they  may  deem  desirable  at  this  time. 
Supreme  Court  Order,  May  26,  1902. 

(b)  Messrs.   Scott   and   Wolverton  have   since   died,   and  Messrs. 
Thomas  Patterson,   of  Pittsburgh,  and  Edward  J.  Fox,  of  Easton, 
have  been  appointed  in  their  place. 

(c)  The  assistant  examiners  are  Messrs.  Wm.  Righter  Fisher,  Phila- 
delphia; Thomas  Stephen  Brown,  Pittsburgh;  John  M.  Harris,  Scran- 
ton,  and  Paul  A.  Kunkel,  Harrisburg. 

(d)  The  Board  chose  as  its  Secretary,  Mr.  Charles  L.  McKeehan,  of 
the  Philadelphia  Bar.     Regulations  and  blank  forms  were  then  pre- 
pared, which  have  been  incorporated  in  this  volume.    No  credentials 
will  be  accepted  unless  made  out  on  these  forms.    They  will  be  fur- 
nished gratuitously  to  all  applicants,  and  requests  for  them  should 
be  sent  to  Mr.  McKeehan 's  office,  321  Chestnut  Street,  Philadelphia. 

(e)  Mr.  Lucien  Hugh  Alexander,  of  Philadelphia,  is  said  to  have 
suggested  the  establishment  of  the  State  Board  of  Law  Examiners. 

(2)  Regulations — Information,  How  Obtained.  The  established 
regulations  appear  under  their  appropriate  heads  in  this  chapter.  In- 
formation not  contained  herein  can  be  had  on  application  to  the  sec- 
retary of  the  Board  of  Law  Examiners.  The  application  should  be 
made  by  mail  when  possible.  Regulations  of  the  Board  of  Law  Ex- 
aminers. 

§21.  Supreme  Court  Requirements — Recommendation 
of  State  Board.  No  person  shall  be  admitted  to  practice  as 
an  attorney  in  this  court  except  upon  the  recommendation 
of  the  State  Board  of  Law  Examiners.  Supreme  Court 
Rule  i. 

(1)  Women  Eligible.  A  woman,  whether  married  or  unmarried, 
may  be  admitted  to  practice  as  an  attorney:  Kilgore's  Application, 
17  W.  N.  C.  563,  1886. 

30 


ATTORNEYS  OF  Two  YEARS'  STANDING. 


§§  20-33]  Requirements  for  Admission  §  22 

(2)  Age  of  Applicants.    Applicants  must  be  twenty-one  years  of 
age  before  they  will  be  recommended  for  admission  by  the  Board. 
Regulations  of  the  Board  of  Law  Examiners. 

(3)  Local  Endorsement.     After  the  applicant  has  qualified,  the 
State  Board,  before  giving  its  recommendation,  procures  from  the  lo- 
cal board  of  examiners  of  the  district  in  which  the  applicant  intends 
to  practice  endorsement  as  to  his  character. 

§22.  —  Attorneys  Who  Have  Practiced  Two  Years 
at  Date  of  Rule.  Any  applicant  for  admission  to  the  bar  of 
this  Court  who,  on  the  first  Monday  of  January,  1903,  was 
a  member  of  the  bar  of  a  court  of  common  pleas  of  this 
commonwealth,  and  after  he  shall  have  practiced  therein 
for  at  least  two  years,  may  be  admitted,  without  examina- 
tion, upon  the  certificate  of  the  State  Board  of  Law  Ex- 
aminers; and  no  such  candidate  shall  be  required  to  adver- 
tise or  pay  any  fee  for  reporting  upon  his  credentials.  Su- 
preme Court  Rule  2. 

(1)  Credentials — Affidavits — Certificates.    The     applicant     under 
this  rule  must  file  with  the  State  Board  of  Law  Examiners : 

(a)  An  affidavit  by  the  applicant  showing  that  he  is  within  the  pro- 
visions of  Rule  2  of  the  Rules  of  the  Supreme  Court. 

(b)  A  certificate  of  a  judge  of  a  court  of  common  pleas  of  Penn- 
sylvania, showing  that  the   applicant  is  within  such  provisions  of 
Rule  2  as  relate  to  practice  in  one  of  the  courts  of  record  of  this 
state. 

(c)  A  certificate  of  good  moral  character  signed  by  three  members 
in  good  and  regular  standing  of  the  bar  of  the  judicial  district  in 
which  the  applicant  resides  or  practices. 

These  credentials  must  be  made  out  on  blank  forms  supplied  by  the 
board.  In  applying  for  blanks  under  this  section,  they  should  be 
designated  as  "Form  H"  [Appendix,  §9].  Regulations  of  the  Board 
of  Law  Examiners. 

For  address  of  secretary,  see  §20,  note  1  (d). 

(2)  Certificate  of  Recommendation.     On  receiving  the  necessary 
credentials  from  such  applicant,  the  State  Board  will  issue  a  certifi- 
cate recommending  his  admission  [Appendix  §11] .    Regulations  of  the 
Board  of  Law  Examiners. 

(3)  Admission.    For  practice  governing  admission,  see  §32,  below. 

31 


ADMISSION  OF  ATTORNEYS. 


§§  23,  24  Registration — Preliminary  Examination  [Chap.  2, 

§23.  —  Students  Registered  at  Date  of  Rule.  Supreme 
Court  Rule  in  force  prior  to  the  first  Monday  of  September, 
1911,  which  provided  for  the  examination  and  admission 
of  students  registered  at  date  of  rule  (January  5,  1903),  has 
been  omitted  from  the  new  rules,  and  that  rule  and  the 
regulations  of  the  Board  of  Law  Examiners  relating  there- 
to are  therefore  omitted. 

§24.  —  Registration — Preliminary  Examination.  No 
person  shall  be  registered  as  a  student  at  law  for  the 
purpose  of  becoming  entitled  to  admission  to  the  bar  of  the 
Supreme  Court  until  he  shall  have  satisfied  the  State  Board 
of  Law  Examiners  that  he  is  of  a  good  moral  character, 
and  shall  have  received  an  academic  degree  from  some  col- 
lege or  university  approved  for  that  purpose  by  the  Court, 
or  shall  have  passed  a  preliminary  examination  upon  the 
following  subjects : 

1.  English  language  and  literature. 

2.  Outlines  of  universal  history. 

3.  History  of  England  and  of  the  United  States. 

4.  Arithmetic,  algebra  through  quadratics,  and  plane 
geometry. 

5.  Modern  geography. 

6.  The  first  four  books  of  Caesar's  Commentaries,  the 
first  six  books  of  The  Aeneid  and  the  first  four  Orations  of 
Cicero  against  Catiline.    Supreme  Court  Rule  3. 

(1)  Registration  on  Academic  Degree — Date.    An  applicant  who 
registers  on  a  college  or  university  degree  may  register  as  of  the  date 
on  which  he  received  the  degree,  providing  he  applies  for  registration 
within  four  months  of  said  date.    In  all  other  cases  the  registration 
shall  be  as  of  the  date  on  which  the  applicant  applies  therefor.    Regu- 
lation of  Board  of  Examiners,  Nov.  17,  1911. 

(2)  Preliminary  Examination — Who  May  Take.       Every    person 
who  is  a  citizen  of  the  United  States,  and  who  has  filed  the  necessary 

32 


PRELIMINARY  EXAMINATION. 


§§  20-33]  Application — Time — Rules  §  24 

credentials  with  the  State  Board  of  Law  Examiners,  is  eligible  to  take 
the  preliminary  examination :  Regulations  of  Board  of  Examiners. 

(3)  Application  for  Examination — Certificates.    An  applicant  for 
examination  and  registration  as  a  student  at  law  must  file  with  the 
secretary  of  the  State  Board  of  Law  Examiners,  at  least  twenty-one 
days  before  the  date  of  examination,  an  application  for  such  examina- 
tion accompanied  by  satisfactory  proof  of  good  moral  character,  which 
shall  consist  of  a  certificate  to  that  effect  signed  by  at  least  three 
members  of  the  bar  in  good  and  regular  standing  in  the  judicial  dis- 
trict in  which  the  applicant  resides  or  intends  to  practice:     Regula- 
tions of  Board  of  Examiners. 

(4)  Forms.     These  credentials  must  be  made  out  on  blank  forms 
supplied  by  the  board.     In  applying  for  blanks  under  this  section, 
they  should  be  designated  as  "Form  A"  (Appendix,  §1). 

For  address  of  secretary,  see  §20,  note  1  (d). 

(5)  Time  and  Place  of  Holding  Examinations — Publication  of  No- 
tice.    Examinations  will  be  held  twice  a  year,  simultaneously,  in  the 
cities  of  Philadelphia  and  Pittsburgh.    A  candidate  may  be  examined 
in  either  of  these  cities,  but  must  make  his  selection  at  time  of  filing 
his  credentials:  Regulations  of  Board  of  Examiners. 

Due  notice  of  the  exact  date  of  the  examination  and  of  the  halls  in 
which  it  will  be  held  will  be  given  in  the  "Legal  Intelligencer"  and 
other  legal  periodicals,  and  may  be  learned  from  the  prothonotaries  of 
the  several  courts  of  common  pleas  of  Pennsylvania:  Id. 

(6)  Rules  Governing  Examinations.     The  following  rules  in  re- 
gard to  preliminary  examination  have  been  adopted  by  the  board: 

(a)  The  preliminary  examination  is  arranged  by  subjects  in  ac- 
cordance with  the  division  of  subjects  made  in  Rule  3  of  the  Rules 
of  the  Supreme  Court. 

(b)  An  applicant  who  fails  in  more  than  two  subjects  will  be  given 
no  credit  whatever.    He  may  appear  for  re-examination  at  any  pre- 
liminary examination  held  within  the  succeeding  year,  without  filing 
additional  credentials,  on  payment  of  one-half  of  the  regular  exami- 
nation fee,  and  on  notifying  the  secretary  in  writing,  at  least  twenty- 
one  days  prior  to  the  date  of  the  examination,  of  his  intention  so  to 
appear.  An  applicant  who  fails  and  does  not  appear  for  re-examina- 
tion within  the  succeeding  year,  must,  in  order  to  qualify  himself  for 
another  examination,  pay  the  regular  examination  fee  and  give  twen- 
ty-one days'  notice  in  writing  to  the  secretary  of  his  intention  to 

33 


ADMISSION  OF  ATTORNEYS. 


§  24  Preliminary  Examinations — Rules — Subjects  [Chap.  2, 

appear.  He  need  not  file  new  credentials,  unless  specially  required 
to  do  so. 

(c)  An  applicant  who  fails  in  not  more  than  two  subjects  at  the 
preliminary  examination  will  be  passed  conditionally,  i.  e.,  he  will  be 
given  credit  in  subjects  in  which  he  passes  and  will  be  permitted  to 
appear  for  re-examination  in  subjects  in  which  he  fails,  at  the  next 
succeeding  preliminary  examination,  without  filing  additional  cre- 
dentials and  without  payment  of  any  examination  fee,  on  notifying 
the  secretary,  at  least  twenty-one  days  prior  to  the  date  of  the  exami- 
nation, of  his  intention  to  so  appear.  If,  on  such  re-examination,  he 
successfully  passes  in  the  subjects  in  which  he  first  failed,  he  will  be 
given  a  certificate  recommending  that  he  be  registered  as  a  student  at 
law  as  of  the  date  on  which  he  first  appeared  for  examination :  Id. 

(7)  Subjects.  An  applicant  for  registration  should  be  prepared 
to  pass  a  satisfactory  examination  on  the  following  subjects  in  accord- 
ance with  the  specification  herein  given  under  each  subject : 

(a)  English.  No  candidate  will  be  accepted  in  English  whose 
work  on  any  subject  is  notably  defective  in  spelling,  punctuation, 
idiom,  or  division  into  paragraphs. 

A  short  essay  will  be  required  to  be  written  on  a  subject  to  be  an- 
nounced at  the  examination. 

The  applicant  must  have  read  the  following  works,  and  must  be  able 
to  pass  a  satisfactory  examination  on  subject-matter,  style  and  struc- 
ture thereof,  and  to  answer  simple  questions  on  the  lives  of  the  au- 
thors: 

Shakespeare's  "Hamlet"  a<nd  " Merchant  of  Venice." 

The  Sir  Roger  de  Coverly  Papers  in  "The  Spectator." 

Scott's  "Heart  of  Mid-Lothian." 

Thackeray's  "Henry  Esmond." 

First  three  books  of  Milton's  "Paradise  Lost." 

Longfellow 's  ' '  Evangeline. ' ' 

Burke 's  "Speech  on  Conciliation  with  America." 

Burke 's  "Letter  to  the  Sheriffs  of  Bristol." 

Benjamin  Franklin's  Autobiography. 

Cooper's  "Last  of  the  Mohicans." 

Webster's  "Reply  to  Hayne." 

Hawthorne's  "Marble  Faun." 

The  applicant  must  have  such  knowledge  of  the  general  history  of 
English  literature  (including  that  of  the  United  States)  as  can  be 
obtained  from  a  good  standard  text-hock  on  this  subject. 

34 


PRELIMINARY  EXAMINATION. 


§§  20-33]  Subjects  Required  §  24 

(b)  History — Outlines  of  Universal  History.     Myers's  "Ancient 
History"  and  Myers's  "Mediaeval  and  Modern  History"  or  other 
equivalent  works  are  recommended  to  those  students  who  have  not 
had  advanced  academic  instruction. 

—  English  History.   With  special  reference  to  social  and  political 
development.     Students  who   have   not   had   advanced   academic  in- 
struction should  make  a  careful  study  of  Montgomery's  "Leading 
Facts  of  English  History,"  or  Ransome's  "Short  History  of  Eng- 
land," or  Higginson  and  Channing's  "English  History  for  Ameri- 
cans," or  some  other  equivalent  work;  and  the  applicant  is  expected 
to  read  Green's  "Short  History  of  the  English  People." 

—  American  History.  This  will  include  colonial  history  with  a  view 
to  the  origin  and  early  development  of  our  institutions;  the  story  of 
the  Revolution  and  of  the  formation  and  adoption  of  the  Federal  Con- 
stitution; and  the  political  and  social  history  of  the  United  States 
down  to  the  present  time.     Students  who  have  not  had  advanced  aca- 
demic instruction  should  carefully  study  Channing's  "Students'  His- 
tory of  the  United  States,"  or  Johnston's  "History  of  the  United 
States  for  Schools,"  or  Thomas's  "History  of  the  United  States,"  or 
some  other  equivalent  work ;  and  the  applicant  for  examination  is  ex- 
pected to  read: 

A  good  general  history  of  the  United  States. 
Fiske's  "Dutch  and  Quaker  Colonies  in  America." 
Parkman's  "Montcalm  and  Wolf." 
Fiske's  "Critical  Period  of  American  History." 

(c)  Latin. 

(A)  First  four  books  of  Caesar's  "Commentaries." 

(B)  First  six  books  of  Virgil's  "Aeneid." 

(C)  First  four  "Orations  of  Cicero  against  Catiline." 
This  examination  will  include  a  general  knowledge  of  the  subject- 

•  matter,  history,  geography  and  mythology  of  (A)  and  (B) ;  sight 
translations  from  above  works  and  sight  translations  taken  at  large 
from  Virgil  and  Cicero  adapted  to  the  proficiency  of  those  who  have 
studied  the  prescribed  works. 

The  student  will  also  be  required  to  render  into  Latin  a  short  pas- 
sage of  English  based  on  the  first  book  of  Caesar's  "Commentaries." 

(d)  Mathematics — Arithmetic.    A  thorough,  practical  knowledge 
of  ordinary  arithmetic.     A  careful  training  in  accurate  computation 

35 


ADMISSION  OF  ATTORNEYS. 


§  24       Preliminary  Examinations — Registration  Certificate — Fees   [Chap.  2, 

with  whole  numbers  and  fractions  should  form  an  important  part  of 
this  work. 

—  Algebra.    Through  quadratics. 

—  Geometry.    The  whole  of  plane  geometry  as  included  in  Went- 
worth's  Geometry  or  any  other  standard  text-book. 

(e)  Modern  Geography.  The  student  will  be  expected  to  have  an 
accurate  knowledge  of  the  political  and  physical  geography  of  the 
United  States  and  such  knowledge  of  the  political  and  physical  geo- 
graphy of  the  rest  of  the  earth  as  can  be  obtained  from  a  careful 
study  of  the  ordinary  text-books  of  the  schools:  Regulations  of  the 
Board  of  Examiners. 

§25. Certificate — Fees.     Every  candidate  shall 

pay  to  the  State  Board  a  fee  of  twenty-five  dollars,  and, 
upon  receiving  a  certificate  recommending  his  registration 
and  certifying  that  he  is  qualified  to  begin  the  study  of  the 
law,  shall  cause  his  name,  age,  place  of  residence,  and  the 
name  of  his  preceptor,  or  the  law  school  in  which  he  pro- 
poses to  pursue  his  studies,  to  be  registered  with  the  pro- 
thonotary  of  the  Supreme  Court  for  the  district  to  which 
his  county  belongs.  Supreme  Court  Rule  3. 

(1)  Fees.    No  credentials  will  be  filed  in  any  case  until  the  ex- 
amination fee  shall  have  been  paid :    Regulations  of  the  Board  of  Law 
Examiners. 

(2)  Registration  Certificate.    After  the  applicant  has  passed  the 
preliminary  examination,  the  state  board  will  issue  to  him  a  certificate 
directed  to  the  prothonotary  of  the  Supreme  Court  of  Pennsylvania, 
certifying  that  he  is  qualified  to  register  as  a  student  at  law.     This 
is  done  by  the  applicant  by  causing  his  name,  age,  place  of  resi- 
dence, name  of  his  preceptor,  or  the  law  school  in  which  he  proposes 
to  pursue  his  legal  studies,  to  be  registered  with  the  prothonotary  of 
the  Supreme  Court  for  the  district  to  which  his  county  belongs:    Id. 

(3)  Time  of  Filing.    Each  applicant  for  registration  shall  file  his 
registration  certificate  with  the  prothonotary  of  the  Supreme  Court 
for  the  district  in  which  said  applicant  resides,  as  soon  as  he  receives 
the  same  from  the  State  Board  of  Law  Examiners.     If  said  certificate 
is  filed  within  six  months  from  the  date  of  the  last  examination  at 

36 


FINAL  EXAMINATION. 


§§  20-33]  Preliminary  Requirements  §  26 

which  the  applicant  appeared,  he  shall  be  registered  as  of  the  regis- 
tration date  named  in  the  certificate;  if  filed  more  than  six  months 
after  said  examination,  he  shall  be  registered  as  of  the  date  on  which 
the  certificate  is  actually  filed  with  the  prothonotary :  Id. 

(4)     Forms.    For  form  of  the  certificate  of  the  State  Board  of 
Law  Examiners  recommending  registration  as  a  student  of  law,  and 
of  the  certificate  of  the  prothonotary  certifying  to  such  registration, 
see  Appendix,  §2  and  exhibit  "A"  of  §3. 
For  address  of  secretary,  see  §20,  note  1  (d). 

§26.  —  Final  Examination — Preliminary  Require- 
ments. Candidates  for  admission,  who  have  spent  at  least 
three  years  after  registration  in  the  study  of  the  law,  either 
by  attendance  upon  the  regular  course  of  a  law  school, 
offering  at  least  a  three  years'  course,  eight  months  in  the 
year  and  an  average  of  ten  hours  per  week  each  year,  or 
partly  in  a  law  school  and  partly  in  the  office  of  a  practicing 
attorney,  or  by  the  bona  fide  service  of  a  regular  clerkship 
in  the  office  of  a  practicing  attorney,  shall  be  eligible  to  ap- 
pear for  examination  for  admission  to  the  bar  of  this  court 
upon  complying  with  the  following  requirements : 

1.  A  candidate  must  advertise  his  intention  to  apply  for 
admission,  in  a  law  periodical  or  a  newspaper  published 
within  the  judicial  district  in  which  he  resides,  and  in  the 
Legal  Intelligencer,  once  a  week  for  four  weeks  imme« 
diately  preceding  the  date  of  filing  his  credentials  with  the 
board. 

2.  He    must   file   the   necessary   credentials   with   the 
Board  in  such  form  as  shall  be  prescribed  at  least  twenty- 
one  days  before  the  date  of  the  examination,  and  shall  pay 
to  the  Board  a  fee  of  twenty-five  dollars. 

3.  He  must  file  a  certificate,  signed  by  at  least  three 
members  of  the  bar  in  good  standing  in  the  judicial  district 

in  which  he  has  resided  or  intends  to  practice,  that  he  is 

• 
37 


ADMISSION  OF  ATTORNEYS. 


§  26  Final    Examination — Preliminary    Requirements         [Chap.  2, 

personally  known  to  them,  and  that  they  believe  him  to  be 
of  good  moral  character. 

4.  A  certificate  from  the  dean  of  the  law  school  or  pre- 
ceptor that  he  has  been  regular  in  attendance  and  pur- 
sued the  study  of  the  law  with  diligence  from  the  time  of 
his  registration.  Supreme  Court  Rule  4. 

(1)  Final  Examination — Time  and  Place — Publication  of  Notice. 

After  studying  three  years,  the  applicant  may  come  before  the  State 
Board  for  final  examination.  This  examination  will  be  held  twice  a 
year,  simultaneously,  in  the  cities  of  Philadelphia  and  Pitts- 
burgh. A  candidate  may  take  the  examination  in  either  of  the 
above  enumerated  cities,  but  must  make  his  selection  at  the  time  of 
filing  his  credentials.  Due  notice  of  the  date  of  this  examination 
and  of  the  halls  in  which  it  will  be  held  will  be  given  in  the  "Legal 
Intelligencer"  and  other  legal  periodicals  and  may  be  learned  from 
the  prothonotaries  of  the  several  courts  of  common  pleas  of  the 
state:  Regulations  of  Board  of  Law  Examiners. 

(2)  Prerequisites — Credentials.       Applicants    who    have    success- 
fully passed  the  examination  for  registration  before  the  State  Board 
and  have  thereafter  registered  and  studied  law  for  three  years  in  ac- 
cordance with  the  provisions  of  Rule  4,  of  the  Supreme  Court   (a 
law  school  diploma  not  exempting  from  examination),  may  take  the 
final  examinations  before  the  State  Board  on  complying  with  the  fol- 
lowing requirements: 

1.  The  applicant  must  advertise  his  intention  of  applying  for  ex- 
amination and  admission  in  the  " Legal  Intelligencer,"  and  in  a  law 
periodical  or  newspaper  of  general  circulation  published  in  the  county 
seat  of  the  county  in  which  he  resides,  once  a  week  for  four  consecu- 
tive weeks  immediately  preceding  the  date  of  filing  his  credentials 
with  the  board. 

2.  The  applicant  must  file  with  the  secretary  of  the  board,  at  least 
twenty-one  days  before  the  date  of  such  examination,  the  following 
credentials : 

(a)  An  affidavit  by  the  applicant  showing  that  he  has  been 
registered  as  a  student  at  law  in  the  office  of  the  prothono- 
tary  of  the  Supreme  Court  of  Pennsylvania  for  a  period  of  three 
years,  and  that  he  has  spent  three  years  after  registration  in  the 
study  of  the  law,  either  by  attendance  upon  the  regular  course  of  a 

38 


FINAL  EXAMINATION. 


§§  20-33]  Preliminary  Requirements  §  26 

law  school  offering  at  least  a  three  years'  course  eight  months  in  the 
year  and  an  average  of  ten  hours  per  week  each  year;  or  partly  in  a 
law  school  and  partly  in  the  office  of  a  practicing  attorney;  or  by  the 
bona  fide  service  of  a  regular  clerkship  in  the  office  of  a  practicing 
attorney. 

(b)  A  certificate  by  the  prothonotary  of  the  Supreme  Court  of 
Pennsylvania  showing  that  the  applicant  has  been  registered  in  the 
office  of  said  prothonotary  as  a  student  at  law  for  a  period  of  at  least 
three  years. 

(c)  A  certificate  by  the  dean  of  the  law  school  which  the  appli- 
cant has  attended,  or  by  the  applicant's  preceptor,  or  by  both,  showing 
that  the  applicant  has  complied  with  the  provisions  of  Rule  4  of 
the  Supreme  Court,  that  he  has  been  regular  in  attendance,  and  that 
he  has  pursued  the  study  of  the  law  with  diligence  from  the  time  of 
his  registration. 

(d)  A  certificate  signed  by  at  least  three  members  in  good  and 
regular  standing  of  the  bar  of  the  judicial  district  in  which  the  appli- 
cant resides  or  intends  to  practice,  that  he  is  personally  known  to 
them  and  that  they  believe  him  to  be  of  good  moral  character. 

(e)  Affidavits  of  publishers  or  managers  of  periodicals  in  which 
he  has  advertised  showing  publication  of  notice  of  his  intention  to 
apply  for  examination  and  admission. 

3.  He  must  pay  to  the  treasurer  of  the  board  his  examination  fee 
of  twenty-five  dollars  at  or  before  the  .time  of  filing  his  credentials. 
No  credentials  will  be  filed  in  any  case  until  this  examination  fee  shall 
have  been  paid. 

All  credentials  must  be  made  out  upon  blank  forms  prepared  and 
furnished  to  the  applicant  by  the  board. 

In  applying  for  blanks  under  this  section,  they  should  be  designated 
as  follows:  For  an  applicant  who  has  studied  three  years  in  a 
law  school,  "Form  B"  [Appendix,  §3];  for  an  applicant  who  has 
studied  three  years  in  the  office  of  a  practicing  attorney,  "Form  C" 
[Appendix,  §4] ;  for  applicant  who  has  studied  three  years,  partly  in  a 
law  school  and  partly  in  the  office  of  a  practicing  attorney,  "Form 
D"  [Appendix,  §5].  Id. 

For  address  of  secretary,  see  §20,  note  1  (d). 

(3)  Age  of  Applicant.  An  applicant  for  admission  to  the  Su- 
preme Court  must  be  twenty-one  years  of  age  before  he  will  be  recom- 
mended for  admission.  Id. 

39 


ADMISSION  OF  ATTORNEYS. 


§§  26,  27  Final   Examination — Re-examination — Subjects         [Chap.  2, 

(4)  Rules  for  Re-examination.     The  final  examination  is  not  ar- 
ranged according  to  subjects,  but  consists  of  a  list  of  questions  select- 
ed generally  from  the  subjects  prescribed  by  the  rules  of  the  Supreme 
Court.     An  applicant  cannot  be  conditioned  in  the  final  examination. 
He  either  passes  or  fails  to  pass.  An  applicant  who  fails  to  pass,  may 
appear  for  re-examination  at  any  final  examination  held  within  the  suc- 
ceeding year  without  filing  additional  credentials,  on  payment  of  one- 
half  of  the  regular  examination  fee  and  on  notifying  the  secretary,  at 
least  twenty-one  days  prior  to  the  date  of  examination,  of  his  inten- 
tion so  to  appear.     An  applicant  who  fails  and  does  not  appear  for 
re-examination  and  pass  within  the  succeeding  year,  must,  in  order  to 
qualify  himself  for  another  examination,  re-advertise,  file  an  affidavit 
of  good  moral  character  and  pay  the  regular  examination  fee :     Id. 

(5)  Failure   to    Appear — Subsequent    Examination — Withdrawal 
of  Credentials.    An  applicant  who  fails  to  appear  for  examination 
after  filing  his  credentials,  may  withdraw  his  credentials  and  one-half 
of  the  examination  fee  paid  by  him,  or  may  leave  both  his  credentials 
and  fee  with  the  board  and  appear  at  a  subsequent  examination,  mere- 
ly notifying  the  secretary  in  writing,  at  least  twenty-one  days  prior 
to  the  examination,  of  his  intention  so  to  appear.    In  case  credentials 
are  withdrawn,  a  new  set  must  be  filed  and  a  full  examination  fee  paid 
to  entitle  the  applicant  to  appear  for  examination:     Id. 

(6)  Certificate   of   State   Board.      After  an  applicant  shall  have 
passed  the  final  examination,  and  the  State  Board  has  received  infor- 
mation from  the  law  examiners  of  the  district  in  which  he  intends  to 
practice  that  they  are  satisfied  as  to  his  good  moral  character,  the 
state  board  will  issue  to  him  a  certificate  (Appendix,  §11)  directed  to 
the  Supreme  Court  of  Pennsylvania,  certifying  that  he  has  passed 
the  examination  prescribed  by  the  rules  of  court,  and  recommending 
his  admission  to  the  bar:  Id. 

(7)  Practice  as  to  Admission.    For  practice  as  to  admission,  see 
§32,  below. 

§27.  —  —  Subjects  Required.  Every  applicant  for 
admission  must  sustain  a  satisfactory  examination  in  Black- 
stone's  Commentaries,  Constitutional  Law,  including  the 
Constitutions  of  the  United  States  and  Pennsylvania, 
Equity,  the  Law  of  Real  and  Personal  Property,  Evidence, 

40 


FINAL  EXAMINATION. 


§§20-33]  Subjects  Required  §27 

Decedents'  Estates,  Landlord  and  Tenant,  Contracts,  Com- 
mercial Law,  Partnership,  Corporations,  Crimes,  Torts, 
Domestic  Relations,  Common  Law  Pleading  and  Practice, 
Pennsylvania  Practice,  the  Federal  Statutes  relating  to 
the  Judiciary  and  to  Bankruptcy,  Pennsylvania  Statutes 
and  Decisions,  and  the  Rules  of  the  Supreme  and  Superior 
Courts,  and  of  the  courts  of  the  county  in  which  the  appli- 
cant intends  to  practice.  Supreme  Court  Rule  5. 

(1)  Blackstone's  Commentaries.    This  examination  will  be  con- 
fined to  Blackstone  's  original  text  as  indicative  of  the  state  of  the  law 
of  England  at  the  time  the  Commentaries  were  first  published.     The 
second  book  of  the  Commentaries  should  be  thoroughly  mastered  and 
a  very  careful  study  made  of  the  definitions  contained  therein.    A 
general  knowledge  of  the  first,  third  and  fourth  books  will  be  suffi- 
cient:   Regulations  of  Board  of  Law  Examiners. 

(2)  Constitutional  Law — Constitution  of  the  United  States.    The 
student  is  expected  to  be  familiar  with  the  history  of  the  formation 
and  adoption  of  the  Constitution,  to  know  thoroughly  the  text  of  the 
Constitution  itself,  and  to  have  a  good  general  knowledge  of  the  in- 
terpretation that  has  been  placed  on  its  leading  provisions  by  the 
Supreme  Court  of  the  United  States:     Id. 

(3)  — Constitution  of  Pennsylvania.    The  student  is  expected  to 
know  the  leading  provisions  of  the  Constitution  of  1873,  and  to  be  fa- 
miliar with  the  principal  decisions  of  the  Supreme  Court  of  the  Com- 
monwealth interpreting  the  constitutional  provisions  relating  to  rights 
of  conscience;  trial  by  jury;  freedom  of  the  press;  rights  of  persons 
accused  of  crimes;  special  and  local  legislation;  the  qualifications  of 
electors;  uniformity  of  taxation  and  exemption  therefrom;  private 
and  municipal  corporations;  the  exercise  of  the  right  of  eminent  do- 
main; and  the  provisions  requiring  compensation  for  property  taken, 
injured  or  destroyed:     Id. 

Cooley's  "Constitutional  Limitations"  and  Buckalew  on  the  Con- 
stitution may  be  taken  as  indicative  of  the  scope  of  the  preparation 
required  and  are  recommended  for  use  to  those  students  who  have  not 
had  advanced  law  school  instruction:  Id. 

The  student  is  also  referred  to  the  cases  cited  under  the  federal  and 
state  constitutions  in  the  two  digests  of  Pennsylvania  statutes:  Id. 

41 


ADMISSION  OF  ATTORNEYS. 


§  27  Final  Examinations — Subjects  Required  [Chap.   1, 

(4)  Equity.     This  will  include  pleading  and  practice  in  equity,  as 
well  as  the  general  principles  of  equity  jurisprudence  and  the  history 
of  the  development  of  equity  jurisdiction  in  England  and  the  United 
States:    Id. 

The  student  is  expected  to  be  familiar  with  the  origin  and  con- 
stitution of  the  High  Court  of  Chancery  in  England ;  with  the  history 
of  the  development  of  its  extraordinary  or  equitable  jurisdiction;  and 
to  have  a  thorough  knowledge  of  the  leading  principles  of  equity  jur- 
isprudence as  treated  under  the  several  heads  of  equitable  jurisdiction 
in  one  or  more  of  the  standard  text-books  on  the  subject.  He  must 
also  be  familiar  with  the  administration  of  equity  in  Pennsylvania 
under  common  law  forms  of  procedure  and  the  causes  which  gave  rise 
to  this  practice ;  with  the  constitutional  provisions  and  the  Acts  of  As- 
sembly conferring  equitable  jurisdiction  on  the  Pennsylvania  courts; 
with  the  nature  and  structure  of  bills  in  equity  and  the  proper  parties 
thereto;  with  the  nature  and  use  of  demurrers,  pleas  and  answers; 
and  with  the  equity  rules  of  the  Supreme  Court  of  this  state :  Id. 

(5)  Real  and  Personal  Property.    The  student  is  expected  to  be 
familiar  with  the  history  of  the  growth  of  the  existing  distinction  be- 
tween real  and  personal  property  and  of  the  peculiar  rules  of  law  ap- 
plicable to  each  of  them;  to  be  able  to  assign  to  their  proper  class 
any  specified  property  rights;  and  to  have  a  thorough  knowledge  of 
the  principal  rules  of  law  and  of  equity  now  in  force  governing  the 
acquisition,  enjoyment,  transfer,  and  devolution  of  property  of  each 
class  as  contained  in  the  best  standard  text-books  and  the  cases  therein 
cited.    He  must  also  be  familiar  with  the  statutes  of  Pennsylvania 
relating  to  property  of  either  class  and  modifying  the  rules  of  the  com- 
mon law  previously  applicable  thereto :     Id. 

(6)  Evidence.     The  student  is  expected  to  be  familiar  with  the 
history  of  the  development  of  trial  by  jury  and  wi;h  the  present  func- 
tions  of   court   and  jury   in   the   trial   of   common   law   cases.     He 
must  also  have  a  thorough  knowledge  of  the  principal  rules  of  legal 
evidence  as  contained  in  the  standard  text-books,  and  of  the  Pennsyl- 
vania statutes  relating  to  the  competency  <t  witnesses  and  the  ad- 
missibility  of  evidence:     Id. 

(7)  Decedents'  Estates.     The  student  is  expected  to  be  familiar 
with  the  history  of  the  law  of  England  in  relation  to  the  devolution 
and  administration  of  the  estates,  both  real  and  personal,  of  deceased 
persons,  and  to  have  a  thorough  knowledge  of  the  leading  principles 
of  law  relating  to  wills  and  to  executors  and  administrators  as  found 

42 


FINAL  EXAMINATION. 


§§  20-33]  Subjects  Required  §  27 

in  standard  text-books  on  these  subjects.  He  must  also  carefully  ex- 
amine and  digest  the  Pennsylvania  statutes,  together  with  the  leading 
decisions  thereon,  relating  to  wills;  intestacy;  the  rights  of  creditors 
against  estates,  both  real  and  personal,  of  decedents ;  specific  perform- 
ance of  decedents'  contracts  for  the  sale  of  real  estate;  dower  and 
partition;  the  sale  of  real  estate  of  decedents  under  the  "Price  Act" 
and  the  various  statutes  authorizing  sales  by  order  of  court;  the  reg- 
ister of  wills;  and  the  jurisdiction  and  powers  of  the  Orphans'  Court: 
Id. 

(8)  Landlord  and  Tenant.    The  student  is  expected  to  have  a  thor- 
ough knowledge  of  the  leading  principles  of  the  law  of  landlord  and 
tenant  as  contained  in  the  standard  text-books,  and  to  be  familiar  with 
the  Pennsylvania  statutes  relating  to  landlord  and  tenant  and  the  prin- 
cipal decisions  of  the  courts  thereon:  Id. 

(9)  Contracts.    Under  this  head  are  comprehended  contracts  of 
every  kind,  including  Negotiable  Instruments;   Agency;  Bailments; 
Sales  of  Personal  Property,  and  Insurance.  The  student  is  expected  to 
have  a  thorough  knowledge  of  the  leading  principles  of  the  law  as 
found  in  the  standard  text-books  and  the  more  important  cases  there- 
in cited  pertaining  either  to  contracts  generally  or  to  any  of  the  sub- 
divisions of  the  subject  above  enumerated.    He  must  also  be  familiar 
with  the  Pennsylvania  statutes  relating  to  Negotiable  Instruments; 
the  Capacity  of  Married  Women;   Frauds  and   Perjuries;   and   the 
leading  decisions  of  the  courts  thereon:  Id. 

(10)  Partnership.     The  student  is  expected  to  be  familiar  with  the 
history  of  the  law  of  partnership  and  to  have  a  thorough  knowledge 
of  the  leading  principles  of  that  law  as  contained  in  the  standard  text- 
books on  the  subject  and  the  more  important  cases  referred  to  therein. 
He  must  also  be  familiar  with  the  statutes  of  Pennsylvania  relating  to 
limited  partnerships ;  partnership  associations ;  partnerships  under  the 
Act  of  May  9, 1899,  P.  L.  261,  4  Purd.  3464-7;  and  the  leading  decisions 
of  the  courts  interpreting  the  same :  Id. 

(11)  Corporations.     The  student  is  expected  to  be  familiar  with 
the  history  of  the  development  of  corporations  and  of  corporation 
law  in  England  and  the  United  States ;  and  to  have  a  thorough  know- 
ledge of  the  several  kinds  of  corporations ;  the  purposes  for  which  they 
may  be  created,  and  the  fundamental  rules  of  law  pertaining  to  their 
organization  and  incorporation ;  their  powers ;  their  management ;  their 
dissolution;  and  the  rights  and  obligations  of  their  stockholders  or 

43 


ADMISSION  OF  ATTORNEYS. 


§  27  Final  Examinations — Subjects  Required  [Chap.  2, 

members  and  their  creditors,  such  as  may  be  obtained  from  a  careful 
study  of  the  standard  text-books  on  private  and  municipal  corpora- 
tions and  an  examination  of  the  more  important  cases  therein  referred 
to.  The  student  must  also  be  familiar  with  the  Pennsylvania  Cor- 
poration Act  of  1874,  P.  L.  73,  1  Purd.  766,  and  supplements  thereto, 
and  have  a  general  knowledge  of  the  scope  of  the  legislation  of  the 
state  in  respect  to  corporations  both  domestic  and  foreign:  Id. 

(12)  Crimes.    The  student  is  expected  to  have  such  a  knowledge 
of  criminal  law  as  can  be  obtained  from  the  careful  study  of  standard 
text-books  on  the  subject,  and  to  be  familiar  with  the  criminal  code 
of  Pennsylvania  and  the  amendments  thereto  as  found  under  the  title 
of  crimes  in  either  of  the  two  digests  of  Pennsylvania  statutes :    Id. 

(13)  Torts.    The  student  is  expected  to  have  such  a  knowledge  of 
the  law  of  torts  as  may  be  obtained  from  a  study  of  the  standard  text- 
books on  the  subject,  and  an  examination  of  the  leading  cases  therein 
referred  to:    Id. 

(14)  Domestic  Relations.    The  student  is  expected  to  have  such  a 
knowledge  of  the  general  rules  of  law  governing  the  domestic  rela- 
tions as  can  be  obtained  from  a  study  of  the  standard  text-books  on 
the  subject,  and  must  be  familiar  with  the  Pennsylvania  statutes  re- 
lating to  Marriage  and  Divorce,  Guardian  and  Ward,  and  the  Rights 
and  Capacities  of  Married  Women:  Id. 

(15)  Common  Law  Pleading  and  Practice.    The  student  is  ex- 
pected to  have  a  thorough  knowledge  of  the  leading  principles  and 
rules  of  common  law  pleading  and  practice  such  as  can  be  obtained 
from  the  careful  study  of  Stephen  on  ' '  Pleading, ' '  in  conjunction  with 
some  standard  collection  of  leading  cases  on  this  subject,  and  should 
be  able  to  make  a  ready  application  of  these  principles  and  rules  in 
conducting  a  cause  at  common  law  under  the  modified  systems  of 
pleading  and  practice  more  recently  introduced  into  Pennsylvania  and 
other  states:    Id. 

(16)  Pennsylvania  Practice.    The  student  is  expected  to  have  a 
good  general  knowledge  of  the  respective  jurisdictions  of  the  Supreme, 
Superior,  Common  Pleas,  Quarter  Sessions,  Orphans'  and  Magistrates' 
or  Justices  of  the  Peace  Courts,  and  must  be  familiar  with  the  gener- 
al course  of  practice,  both  in  equity  and  at  common  law,  in  the  Courts 
of  Common  Pleas,  and  with  the  general  course  of  practice  in  the 
Orphan*'  and  Quarter  Sessions  Courts,  and  in  the  Supreme  and  Su- 
perior Courts  on  appeals:    Id. 

44 


FINAL  EXAMINATION. 


§§  20-33]  Subjects  Required  §  27 

In  connection  with  this  subject  the  student  is  expected  to  make  a 
eareful  study  of  the  Pennsylvania  statutes  relating  to  Actions,  Abate- 
ment, Practice,  Attorneys-at-Law,  Attachments,  Warrants  of  Arrest, 
Replevin,  Ejectment,  Scire  Facias  sur  Mortgages,  Mechanics'  Liens, 
Distress,  Judgments,  Executions,  Probate  of  Wills,  and  Decedents' 
Estates,  Prothonotaries  and  Clerks  of  Court,  Register  of  Wills,  the 
organization,  jurisdiction  and  powers  of  the  several  courts  of  the 
state,  and  all  other  statutes  pertaining  to  ordinary  remedies  and  pro- 
cedure in  our  courts  of  justice:  Id. 

(17)  Federal  Statutes.    The  student  is  expected  to  know  the  lead- 
ing provisions  of  the  Acts  of  Congress  relating  to  the  organization  and 
jurisdiction  of  the  several  Federal  Courts  and  the  leading  provisions 
of  the  Bankruptcy  Act  of  1898,  and  the  supplement  thereto:    Id. 

(18)  Pennsylvania  Statutes.     In  addition  to  the  statutes  herein 
above  referred  to,  the  student  is  expected  throughout  his  entire  course 
of  reading  and  study  to  consult  and  familiarize  himself  with  all  the 
more  important  Pennsylvania  statutes  relating  to  the  subjects  above 
enumerated :    Id. 

(19)  Pennsylvania  Decisions.    In  addition  to  the  cases  consulted  by 
the  student    in  connection  with  his  special  work  on  the  several  sub- 
jects above  mentioned,  he  should  carefully  read  and  digest  the  fol- 
lowing Pennsylvania  decisions  and  be  prepared  to  analyze  and  intelli- 
gently discuss  any  of  them  which  may  be  assigned  to  him  at  his  ex- 
amination : 

Ingersoll  v.  Sergeant,  1  Whar.  337. 

Lancaster  v.  Dolan,  1  Rawle  231. 

Leazure  v.  Hillegas,  7  S.  &  R.  313. 

Doner  v.  Stauffer,  1  P.  &  W.  198. 

Lyle  v.  Richards,  9  S.  &  R.  322. 

Wilt  v.  Welsh,  6  Watts  9. 

Hammett  v.  Phila.,  65  Pa.  146. 

Wheeler  v.  Phila.,  77  Pa.  338. 

Wallace  v.  Harmstad,  44  Pa.  492. 

Sanderson  v.  Coal  Co.,  113  Pa.  126. 

P.,  W.  &  B.  R.  R.  Co.  v.  Woelpper,  64  Pa.  366. 

Com.  v.  Standard  Oil  Co.,  101  Pa.  119. 

Martin  v.  Berens,  67  Pa.  459. 

Manners  v.  Library  Co.,  93  Pa.  165. 

Pa.  R.  R.  v.  Lippincott,  116  Pa.  472. 

45 


ADMISSION  OF  ATTORNEYS. 


§§  28,  29      Final  Examinations — Attorneys  from  Other  States      [Chap.  1, 

Real  Estate  Investment  Co.  v.  Roop,  132  Pa.  496. 

Phila.  Ball  Club  v.  Lajoie,  202  Pa.  210. 

The  student  will  be  expected  to  be  able  to  apply  the  leading  prin- 
ciples and  rules  of  law  pertaining  to  any  of  the  foregoing  subjects  to 
the  discussion  and  decision  of  concrete  cases:  Id. 

(20)  Rules  of  Court.  The  student  is  expected  to  be  familiar  with 
the  rules  of  the  Supreme  and  Superior  Courts  and  with  the  rules  of 
the  Courts  of  Common  Pleas,  Orphans'  Court  and  Court  of  Quarter 
Sessions  of  the  judicial  district  within  which  he  intends  to  practice, 

§28. How,  When  and  Where  Final  Examinations 

Are  Conducted.  Examinations  for  registration  and  admis- 
sion to  the  bar  shall  be  conducted  in  writing,  and  shall  be 
held  simultaneously,  after  due  notice,  twice  a  year,  in  the 
cities  of  Philadelphia  and  Pittsburgh.  Supreme  Court 
Rule  6. 

§29.  —  Attorneys  from  Other  States — Of  Five  Years' 
Standing.  Attorneys  from  other  states,  upon  presenting 
satisfactory  evidence  that  they  are  members  in  good  stand- 
ing of  the  Appellate  Court  of  last  resort  of  the  state  from 
which  they  came;  that  they  had  practiced  in  a  court 
of  record  of  that  state  for  at  least  five  years,  and  that  they 
are  of  good  moral  character,  may  be  admitted  to  the  bar 
of  this  court  without  examination  upon  the  recommenda- 
tion of  the  State  Board,  provided,  however,  that  the  board 
may,  in  its  discretion,  require  any  such  applicant  to  take  a 
final  examination.  Supreme  Court  Rule  9. 

(1)  General  Requirements.  Applicants  from  other  states  may  ob- 
tain a  certificate  from  the  state  board  of  law  examiners  recommend- 
ing his  admission  on  complying  with  the  following  requirements : 

1.  He  must  advertise  his  intention  to  apply  for  admission  to  the 
bar  of  the  Supreme  Court  of  Pennsylvania  in  the  "Legal  Intelli- 
gencer, ' '  and  in  a  law  periodical  or  newspaper  of  general  circulation 
published  in  the  county  seat  of  the  county  in  which  he  resides,  once  a 
week  for  four  consecutive  weeks  immediately  preceding  the  date  of 
filing  his  credentials. 

46 


ATTORNEYS  FROM  OTHER  STATES. 


§§20-33]  Of  Five  Years'  Standing  §29 

2.  He  must  file  with  the  secretary  of  the  State  Board  the  following 
credentials : 

(a)  An  affidavit  by  the  applicant  showing  that  he  is  a  member  of 
the  bar  of  the  appellate  court  of  last  resort  of  the  state  from  which 
he  came,  that  he  has  practiced  in  a  court  of  record  of  said  state  for  at 
least  five  years,  and  that  he  has  advertised  his  intention  to  apply  for 
admission  to  the  bar  of  the  Supreme  Court  of  Pennsylvania  as  above 
provided. 

(b)  A  certificate  by  one  of  the  judges  of  the  appellate  court  of 
last  resort  of  the  state  from  which  the  applicant  came,  showing  that 
he  is  a  member  in  good  standing  of  the  bar  of  said  court. 

(c)  A  certificate  by  one  of  the  judges  of  the  court  of  record  within 
which  the  applicant  has  practiced,  showing  that  the  applicant  is  a 
member  in  good  standing  of  the  bar  of  said  court,  and  that  he  has 
practiced  therein  for  at  least  five  years. 

(d)  Affidavits  by  the  publishers  or  managers  of  the  periodicals  in 
which  he  has  advertised,  showing  the  publication  of  notice  of  the  ap- 
plicant's intention  to  apply  for  admission  to  the  bar  of  the  Supreme 
Court  of  Pennsylvania. 

(e)  A  certificate  of  good  moral  character  signed  uy  at  least  three 
members  in  good  standing  of  the  bar  of  the  judicial  district  within 
which  the  applicant  resides  or  intends  to  practice :     Regulations  of  the 
Board  of  Law  Examiners. 

These  credentials  must  be  made  out  on  blank  forms  supplied  by 
the  board.  In  applying  for  blanks  under  this  section,  they  should 
be  designated  as  "Form  F"  [See  Appendix,  §7]. 

For  address  of  secretary,  see  §20,  note  1  (d). 

(2)  Court  of  Last  Resort.    Admission  to  the  Supreme  Court  of 
New  York  does  not  entitle  an  attorney  to  admission  to  our  Supreme 
Court,  as  such  court  is  not  the  highest  court  in  that  state:  Splane's 
Petition,  123  Pa.  527,  538,  1888. 

(3)  Certificate  as  to  Character,     (a)  A  certificate  of  good  moral 
standing  will  not  be  dispensed  with:  Admission  to  the  Bar,  14  W.  N. 
C.  88,  1884;  (b)  and  a  member  of  the  bar  of  another  state  who  now 
resides  in  this  state  is  not  relieved  from  furnishing  a  certificate  as  to 
his  moral  standing  from  the  court  of  his  last  residence:     Rodger's 
Petition,  194  Pa.  161,  1899.      . 

(4)  Admission  to  County  Courts  Without  Examination.    A  certifi- 
cate of  the  state  board  under  this  rule,  which  does  not  state  that  the 

47 


ADMISSION  OF  ATTORNEYS. 


§  30  Attorneys  from  Other  States — Of  One  Year's  Standing    [Chap.  2, 

applicant  passed  an  examination  before  them,  does  not  admit  such 
person  to  practice  in  Allegheny  County  under  Rule  36  of  the  courts 
of  that  county:  Musgrave's  Case,  216  Pa.  598,  1907.  Admission  to 
the  Supreme  Court  does  not  relieve  applicants  from  complying  with 
local  court  rules :  Id.  This  is  changed  by  Act  May  8,  1909,  §33,  below. 
See  also  §33,  note  (4),  below,  as  to  constitutionality  of  act. 
(5)  Local  Endorsement.  See  §21,  note  (3). 

§30. Of  One  Year's  Standing.  Attorneys  from 

other  states,  upon  presenting  satisfactory  evidence  that 
they  are  members  in  good  standing  of  a  court  of  record  of 
the  state  from  which  they  came,  and  have  practiced  therein 
for  at  least  one  year,  and  that  they  are  of  good  moral  char- 
acter, may,  in  the  discretion  of  the  State  Board,  be  permit- 
ted to  take  a  final  examination  without  previous  registra- 
tion. Supreme  Court  Rule  9. 

(1)  Examinations  Required — Credentials.  It  is  the  practice  of 
the  board  to  require  all  applicants  under  this  rule  to  pass  the  pre- 
liminary, as  well  as  the  final,  examination,  unless  the  applicant  has 
received  an  academic  degree  which  will  be  accepted  in  this  state  in 
lieu  of  a  preliminary  examination.  The  applicant  must  comply  with 
the  following  requirements: 

1.  He  must  advertise  his  intention  to  apply  for  examination  and 
admission  to  the  bar  of  the  Supreme  Court  of  Pennsylvania  in  the 
"Legal  Intelligencer"  and  in  a  law  periodical  or  newspaper  of  general 
circulation  published  in  the  county  seat  of  the  conuty  in  which  he 
resides,  once  a  week  for  four  consecutive  weeks  immediately  preceding 
the  date  of  filing  his  credentials. 

2.  He  must  file  with  the  secretary  of  the  state  board,  at  least 
twenty-one  days  before  the  date  of  examination,  the  following  cre- 
dentials : 

(a)  An  affidavit  by  the  applicant  showing  that  he  is  a  member  of 
the  bar  of  a  court  of  record  of  the  state  from  which  he  came,  that  he 
has  practiced  therein  for  at  least  one  year,  and  that  he  has  advertised 
his  intention  to  apply  for  examination  and  admission  to  the  bar  of  the 
Supreme  Court  of  Pennsylvania  as  above  provided. 

(b)  A  certificate  by  one  of  the  judges  of  the  court  of  record  in 
which  the  applicant  has  practiced,  showing  that  he  is  a  member    in 

48 


ATTORNEYS  FROM  OTHER  STATES. 


§§  20-33]  Of  Less  than  One  Year's  Standing  §  31 

good  standing  of  the  bar  of  said  court,  and  has  practiced  therein  for 
at  least  one  year. 

(c)  A  certificate  of  good  moral  character  signed  by  at  least  three 
members  in  good  standing  of  the  bar  of  the  judicial  district  within 
which  the  applicant  resides  or  intends  to  practice. 

(d)  Affidavits  by  the  publishers  or  managers  of  the  periodicals  in 
which  he  has  advertised,  showing  the  publication  of  notice  of  the  ap- 
plicant's intention  to  apply  for  examination  and  admission. 

3.  The  applicant  must  pay  to  the  treasurer  of  the  State  Board  at  or 
before  the  date  of  filing  his  credentials,  the  examination  fee  of 
twenty-five  dollars.  No  credentials  will  be  filed  until  this  fee  has  been 
paid:  Regulations  of  the  Board  of  Law  Examiners. 

The  credentials  must  be  made  out  on  blank  forms  supplied  by  the 
board.  In  applying  for  blanks  under  this  section,  they  should  be 
designated  as  "Form  E"[See  Appendix,  §6] :  Id. 

(2)     Local  Endorsement.     See  §21,  note  (3). 

§31. Of  Less  than  One  Year's  Standing — Exami- 
nation. The  State  Board  of  Law  Examiners  may,  in  its 
discretion,  permit  an  attorney  from  another  state,  without 
regard  to  the  period  during  which  he  has  practiced  law  in 
that  state,  to  take  a  final  examination  without  previous 
registration  in  this  state,  if  he  shall  have  served  a  regular 
clerkship  in  the  office  of  a  practicing  attorney  in  this  state 
for  a  period  of  at  least  one  year  prior  to  said  examination. 
Supreme  Court  Rule  9. 

(1)  Examinations  Required — Credentials.  It  is  the  practice  of 
the  board  to  require  all  applicants  under  this  rule  to  pass  a  prelimi- 
nary, as  well  as  final,  examination,  unless  the  applicant  has  received 
an  academic  degree  which  will  be  accepted  in  this  state  in  lieu  of  a 
preliminary  examination.  The  applicant  must  comply  with  the  fol- 
lowing requirements: 

1.  He  must  advertise  his  intention  to  apply  for  examination  and 
admission  to  the  bar  of  the  Supreme  Court  of  Pennsylvania,  in  the 
"Legal  Intelligencer"  and  in  a  law  periodical  or  newspaper  of  gen- 
eral circulation  published  in  the  county  seat  of  the  county  in  which* 
he  resides,  once  a  week  for  four  consecutive  weeks  immediately  pre- 
ceding the  date  of  filing  his  credentials  with  the  board. 

49 


ADMISSION  OF  ATTORNEYS. 


§  32  Practice  on  Admission  [Chap.  2, 

2.  He  must  file  with  the  secretary  of  the  state  board  at  least 
twenty-one  days  before  the  date  of  examination  the  following  creden- 
tials: 

(a)  An  affidavit  by  the  applicant  showing  that  he  is  a  member  of 
the  bar  of  a  court  of  record  of  the  state  from  which  he  came ;  that  he 
has  served  bona  fide  a  regular  clerkship  in  the  office  of  a  practicing 
attorney  in  the  state  of  Pennsylvania,  and  that  he  has  advertised  his 
intention  to  apply  for  examination  and  admission  to  the  bar  of  the 
Supreme  Court  of  Pennsylvania  as  above  provided. 

(b)  A  certificate  by  one  of  the  judges  of  the  court  of  record  to 
which  the  applicant  has  been  admitted,  showing  that  he  is  a  member 
in  good  standing  of  the  bar  of  said  court. 

(c)  A  certificate  by  an  attorney  in  whose  office  the  applicant  has 
served  a  clerkship,  showing  that  he  has  served  bona  fide  a  regular 
clerkship  in  said  attorney's  office,  for  a  period  of  one  year. 

(d)  A  certificate  of  good  moral  character  signed  by  at  least  three 
members  in  good  standing  of  the  bar  of  the  judicial  district  within 
which  the  applicant  resides  or  intends  to  practice. 

(e)  Affidavits  by  the  publishers  or  managers  of  the  periodicals  in 
which  he  has  advertised,  showing  the  publication  of  notice  of  the  ap* 
plicant  's  intention  to  apply  for  examination  and  admission. 

3.  The  applicant  must  pay  to  the  treasurer  of  the  state  board,  at 
or  before  the  date  of  filing  his  credentials,  the  examination  fee  of 
twenty-five  dollars.    No  credentials  will  be  filed  until  this  fee  has  beerx 
paid:     Regulations  of  the  Board  of  Law  Examiners. 

These  credentials  must  be  made  out  on  blank  forms  supplied  by  the 
board.  In  applying  for  blanks  under  this  section,  they  should  be 
designated  as  "Form  I"  [Appendix,  §10] :  Id. 

§32.  —  Practice  on  Admission.  Every  applicant  for 
admission  to  practice  in  the  Supreme  Court  after  having 
fulfilled  the  requirements  for  admission  contained  in  this 
chapter  and  having  received  the  certificate  of  recommen- 
dation from  the  State  Board  of  Law  Examiners,  must  pre- 
sent himself  in  person  in  court  on  any  Monday  at  the  open- 
ing of  court,  or,  if  on  other  days,  on  good  cause  shown. 
After  the  prsecipe  [Appendix,  §12]  has  been  filled  out  and 
signed  and  a  motion  made  for  his  admission  by  a  mem- 

50 


SUPERIOR  COURT  REQUIREMENTS. 


§§  20-33]  Member  of  Bar  of  Supreme  Court  §  33 

her  of  the  bar  of  the  court,  he  is  required  to  take 
the  oath  of  office  [Appendix,  §16]  which  is  administered 
in  open  court  by  the  prothonotary.  After  having  taken  the 
oath,  he  shall  hand  to  the  prothonotary  his  certificate  of 
recommendation  of  the  State  Board  of  Law  Examiners 
and  the  prsecipe,  together  with  a  fee  of  five  dollars,  to 
cover  the  costs  of  admission,  and  in  due  course  will  receive 
his  certificate  of  membership  [Appendix,  §§17  and  18] 
under  the  seal  of  the  court. 

§33.  Superior  Court  Requirements —  (A)  Members  of 
Bar  of  Supreme  Court.  Members  of  the  bar  of  the  Su- 
preme Court  on  the  first  Monday  of  July,  1895,  shall,  with- 
out  further  action,  be  also  members  of  the  bar  of  the  Su- 
perior Court.  Thereafter  admission  shall  be  governed  by 
such  rules  as  the  Superior  Court  may  make,  but  the  quali- 
fications for  admission  shall  not  be  more  burdensome  than 
those  required  by  the  Supreme  Court  Act  June  24,  1895, 
§12,  P.  L.  212,  Purd.  4507. 

Admission  now  had  or  that  may  hereafter  be  had  to 
practice  as  an  attorney-at-law  in  the  Supreme  Court  of 
this  commonwealth  shall  of  itself,  without  more,  operate 
as  an  admission  of  such  attorney  as  an  attorney-at-law  in 
every  other  court  of  this  commonwealth  without  any  other 
or  further  action  by  such  other  courts  or  by  such  attorney. 
Act  May  8,  1909,  §i,  P.  L.  475,  5  Purd.  5243,  pi.  i. 

Any  person  desiring  to  be  formally  admitted  to  the  bar 
of  this  court,  who,  at  the  date  of  his  application,  shall  have 
been  admitted  to  practice  at  the  bar  of  the  Supreme  Court 
of  this  commonwealth  and  is  in  good  and  regular  standing, 
may  be  admitted  and  sworn  upon  exhibiting  the  certificate 
of  the  prothonotary  of  the  Supreme  Court  of  these  facts. 
Superior  Court  Rule  3. 


ADMISSION  OF  ATTORNEYS. 


§  33  Superior  Court  Requirements  [Chap.  2, 

—  (B)  Members  of  Common  Pleas  of  Two  Years'  Stand- 
ing.    Any  applicant  for  admission  to  the  bar  of  this  court 
who,  on  May  2.2,,  1903,  was  a  member  of  the  bar  of  a  court  of 
common  pleas  of  this  commonwealth,  and  after  he  shall 
have  practiced  therein  for  at  least  two  years,  may  be  ad- 
mitted without  examination,  upon  the  certificate  of  the 
State  Board  of  Law  Examiners;  and  no  such  candidate 
shall  be  required  to  advertise  or  pay  any  fee  for  reporting 
upon  his  credentials.    Superior  Court  Rule  2.. 

—  (C)  Applicants  for  Admission  Generally — Recom- 
mendation of  State  Board.    Every  applicant  for  admission, 
not  within  the  class  described  in  Rule  2,  and  not  having 
been  admitted  to  practice  as  an  attorney  at  the  bar  of  the 
Supreme  Court,  shall  be  required  to  present  the  certificate 
of  the  State  Board  of  Law  Examiners,  of  his  eligibility  for 
admission  to  the  bar  of  that  court;  and  any  applicant,  be- 
ing a  person  of  good  moral  character,  who  shall  present 
the  aforesaid  certificate,  shall  be  eligible  for  admission  to 
practice  as  an  attorney  at  the  bar  of  this  court.     Superior 
Court  Rule  4. 

—  (D)  Attorneys  from  Other  States.    Attorneys  from 
other  states  may  be  admitted  upon  compliance  with  the 
provisions  of  Rule  9  [§29,  above]  of  the  Supreme  Court 
relative  to  that  subject.    Superior  Court  Rule  5. 

(1)  Proof  of  Qualification.  By  the  requirements  of  the  rules  re- 
ferred to  above  (B),  it  is  the  practice  for  the  member  of  the  bar 
making  the  motion  for  admission  to  certify  in  the  praecipe  that  the 
applicant  is  of  good  moral  character.  The  praecipe  also  certifies  that  the 
applicant  is  within  the  provisions  of  the  Superior  Court  Rules  as 
above  (B),  in  that  he  was  admitted  to  practice  in  a  court  of  common 
pleas  on  or  before  May  22,  1903,  and  has  practiced  therein  for  two 
years  (for  form  of  praecipe,  see  Appendix,  §13),  or  that  he  has  been 
admitted  to  the  Supreme  Court  (for  form  of  praecipe,  see  Appendix, 
§14),  or  that  he  is  recommended  by  the  State  Board  of  Law  Examin- 
ers (for  form  of  praecipe,  see  Appendix,  §12). 


SUPERIOR  COURT  REQUIREMENTS. 


§§20-33]  Disbarment — Act  of  1909 — Constitutionality  §33 

(2)  Practice  on  Admission.    The  practice  as  to  admission  to  the 
Superior  Court  is  substantially  the  same  as  that  of  admission  to  the 
Supreme  Court.    See  §32,  above. 

(3)  Disbarment.    Sec.  2  of  Act  of  May  8,  1909,  P.  L.  475,  provides 
that  disbarment  or  suspension  of  attorneys  by  Supreme  Court  oper- 
ates as  disbarment  or  suspension  from  every  other  court  in  the  com- 
monwealth. 

(4)  Constitutionality  of  Act  of  1909.    The  Act  of  May  8,  1909, 
is  not  unconstitutional  as  an  encroachment  on  the  judicial  department 
of  the  government:  Hoopes  v.  Bradshaw,  231  Pa.  485,  1911. 


53 


TERRITORIAL  AND  ORIGINAL  JURISDICTION. 
§§34,  35  Supreme  Court  [Chap.  3, 

CHAPTER  III. 

TERRITORIAL  AND  ORIGINAL  JURISDICTION. 

§34.     Supreme  Court. 

Territorial  Jurisdiction. 
§35.        Original  Jurisdiction. 

(A)  Generally. 

(B)  No  Duties  not  Judicial — Power  of  Appointment. 
§36.            Injunction. 

(A)  Generally. 

(B)  Hearing — Certifying  to  other  Districts. 

§37.  Habeas  Corpus. 

§38.  Mandamus. 

(A)  Generally. 

(B)  Certifying  from  One  District  to  Another. 

(C)  Hearing  and  Judgment — Damages  and  Costs. 
§39.            Quo  Warranto. 

§40.    Superior  Court. 

Territorial  Jurisdiction. 
§41.        Original  Jurisdiction — Habeas  Corpus. 

§34.  Supreme  Court — Territorial  Jurisdiction.  The 
jurisdiction  of  the  Supreme  Court  shall  extend  over  the 
state.  Const.,  art.  5,  §3,  I  Purd.  175,  pi.  105. 

(1)  Division  of  State  into  Districts.  Division  of  the  state  into 
districts  does  not  affect  jurisdiction  of  Supreme  Court  in  issuing  writs 
to  any  other  part  of  state  or  in  certifying  appeals  to  other  districts. 
Penna.  R.  R.  v.  Canal  Comrs.,  21  Pa.  9,  1852 ;  Hazen  v.  Com.,  23  Pa. 
355,  1854;  Com.  v.  Pitts.  Councils,  34  Pa,  496,  1859;  Com.  v.  Alle- 
gheny Co.,  37  Pa.  237, 1860;  Ewing  v.  Filley,  43  Pa.  384, 1862;  Kraft's 
Ap.,  94  Pa.  449,  1880. 

§35.  —  Original  Jurisdiction —  (A)  Generally.  The 
Judges  thereof  [of  the  Supreme  Court]  shall,  by  virtue 

54 


SUPREME  COURT. 


§§34-41]  Original  Jurisdiction  §35 

of  their  offices,  be  justices  of  oyer  and  terminer  and  gen- 
eral jail  delivery  in  the  several  counties.  They  shall  have 
original  jurisdiction  in  cases  of  injunction  where  a  cor- 
poration is  a  party  defendant  [§36  below],  of  habeas  cor- 
Pus  [§37  below],  of  mandamus  to  courts  of  inferior  juris- 
diction [§38  below],  and  of  quo  warranto  to  all  officers  of 
the  commonwealth  whose  jurisdiction  extends  over  the 
state  [§39  below]  but  shall  not  exercise  any  other  original 
jurisdiction.  Const.,  art.  5,  §3,  i  Purd.  175,  pi.  105. 

(B)  No  Duties  not  Judicial — Power  of  Appoint- 
ment. No  duties  shall  be  imposed  by  law  upon  the  Su- 
preme Court  or  any  of  the  judges  thereof  except  such  as 
are  judicial,  nor  shall  any  of  the  judges  thereof  exercise 
any  power  of  appointment  except  as  herein  provided. 
The  court  of  nisi  prius  is  hereby  abolished,  and  no  court 
of  original  jurisdiction  to  be  presided  over  by  any  one  or 
more  of  the  Judges  of  the  Supreme  Court  shall  be  estab- 
lished. Const.,  art.  5,  §21,  i  Purd.  181,  pi.  123. 

(1)  Power  of  the  Supreme  Court  Judges — Change  of  Venue — 
Certiorari.  (a)  A  Justice  of  the  Supreme  Court  may  sit  as  a  judge 
of  court  of  oyer  and  terminer  in  any  county  of  the  state:  Com.  v. 
Ickhoff,  33  Pa.  80,  1858;  Com.  v.  Balph,  111  Pa.  365,  1886;  Com.  v. 
O'Donnell,  12  C.  C.  97, 1892.  (b)  These  powers  are  not  taken  away  by 
subsequent  clauses  in  this  section  whicL  say  that  the  justices  shall  not 
exercise  any  other  original  jurisdiction  except  in  cases  specified,  or  by 
the  above  clause  of  the  constitution  abolishing  courts  of  nisi  prius 
and  forbidding  establishment  of  any  other  court  of  original  jurisdic- 
tion to  be  presided  over  by  Supreme  Court  Judges,  and  S  ipreme  Coi.rt 
may  issue  writ  of  certiorari  to  quarter  sessions  of  any  county  and 
remove  proceedings  to  Supreme  Court,  or  it  may  remove  cases  from 
one  county  to  another.  But  these  powers  will  be  exercised  only  where 
it  is  clearly  shown  to  be  necessary  to  an  impartial  trial:  Com.  v. 
Balph,  111  Pa.  365,  1886;  Com.  v.  Delamater,  145  Pa.  210,  1891;  Com. 
v.  Smith,  185  Pa.  553, 1898;  Com.  v.  Green,  185  Pa.  641,  1898;  Quay's 
Case,  189  Pa.  517,  1899.  (c)  Action  of  Supreme  Court  on  certi- 
orari to  change  venue,  while  not  strictly  one  of  original  jurisdiction, 

55 


ORIGINAL  JURISDICTION. 


§  36  Supreme  Court — Injunctions  [Chap.  3, 

is  one  of  general  supervision  in  interest  of  justice  and  is  governed  by 
appellate  court's  judgment  on  facts:  Com.  v.  Ronemus,  205  Pa.  420, 
1903;  (d)  if  convinced  that  fair  trial  cannot  be  had,  Supreme  Court 
may  remove  pending  case  to  another  court  by  certiorari,  or  try  case  be- 
fore one  of  their  own  number :  Quay 's  Case,  189  Pa.  517, 1899 ;  Com.  v. 
Ronemus,  205  Pa.  420,  1903;  (e)  rule  for  certiorari  to  quarter  sessions 
on  ground  of  public  feeling  against  defendant  will  be  discharged  where 
conditions  have  changed  at  time  of  hearing  so  that  defendant  is  no 
longer  at  disadvantage:  Com.  v.  Smith,  185  Pa.  553,  1898;  Com.  v. 
Fletcher,  208  Pa.  137,  1904;  (f)  where  defendants  made  no  application 
to  court  in  which  they  were  held  for  trial  to  correct  any  errors  in  pro- 
ceedings before  one  of  judges  of  said  court  sitting  as  committing  mag- 
istrate, Supreme  Court  will  not  issue  certiorari:  Com.  v.  Green,  185 
Pa.  641,  1898;  (g)  where  no  application  to  quarter  sessions  judges  is 
made  to  hold  an  election  court,  Supreme  Court  will  not  depute  one  of 
its  own  members  to  hold  such  court :  Election  Court,  204  Pa.  92,  1902. 
(2)  General  Jurisdiction,  (a)  Supreme  Court  has  no  power  to  ap- 
prove a  charter:  Tara  Benevolent  Society,  9  Phila.  287,  1874;  (b) 
nor  to  decree  sale  of  property  of  corporation  under  mortgage :  Fargo 
v.  Ry.,  81^  Pa.  266,  1875;  (c)  nor  entertain  petition  for  reproduc- 
tion and  recording  of  lost  deed:  Nichols's  Petition,  180  Pa.  591, 
1897;  (d)  but  failure  of  proper  officers  of  commonwealth  to  impose 
penalty  for  non-payment  of  tax  does  not  prevent  Supreme  Court, 
having  facts  before  it,  from  including  such  penalty  in  its  judgment,  or 
make  such  action  unconstitutional  exercise  of  original  jurisdiction. 
Com.  v.  Phila.  &  Reading  Coal  &  Iron  Co.,  145  Pa.  283,  1892. 

§36. Injunction —  (A)  Generally.  They  [the  Jus- 
tices of  the  Supreme  Court]  shall  have  original  jurisdiction 
in  cases  of  injunction  where  a  corporation  is  a  party  de- 
fendant. Const.,  art.  5,  §3,  i  Purd.  175,  pi.  105. 

(B)  Hearing — Certifying  to  Other  Districts. 

The  said  court  when  in  session  in  any  district  shall  exercise 
original  jurisdiction  in  the  cases  enumerated  [in  cases  of 
injunction  where  a  corporation  is  a  party  defendant]; 
throughout  the  state;  and  if  not  decided  before  the  close 
of  its  session  in  said  district,  shall  cause  the  same,  with 
all  proceedings  thereon,  to  be  certified  to  and  filed  for 

56 


SUPREME  COURT. 


§§34-41]  Injunctions — Habeas  Corpus  §§36,37 

action,  with  the  prothonotary  of  the  supreme  court,  in 
the  district  within  which  said  court  shall  be  next  in  ses- 
sion, and  so  to  be  certified  from  district  to  district  until 
finally  decided  upon.  Act  April  8,  1852,  §i,  P.  L.  291,  2 
Purd.  1413,  pi.  ii. 

(1)  Concurrent  Jurisdiction  of  Common  Pleas,     (a)  Jurisdiction 
of  common  pleas  courts  to  issue  injunctions  against  corporations  is 
concurrent  with  that  of  Supreme  Court :  McGeorge  v.  Steel  &  Iron  Co., 
(C.  P.  Montour  Co.),  11  Phila.  602,  1875. 

(2)  Jurisdiction  Optional,    (a)  It  is  optional  with  Supreme  Court 
to  entertain  original  jurisdiction  in  injunction  suits :  Wheeler  v.  Phila., 
77  Pa.  338,  1875;  (b)  and  it  will  not  do  so,  except  in  extreme  cases 
which  are  important  in  their  character  and  where  some  special  reason, 
such  as  necessity  for  speedy  decision,  is  shown :  Wheeler  v.  Phila., 
77  Pa,  338,  1875;  Buck  Mountain  Coal  Co.  v.  Coal  and  Nav.  Co.,  2 
W.  N.  C.  241, 1876;  Clark  v.  Washington  Boro.,  145  Pa.  566, 1892;  De 
Walt  v.  Bartley,  146  Pa.  525,  1892;  Bruce  v.  Pittsburg,  166  Pa.  152, 
1895;  Blankenburg  v.  Transit  Co.,  Jan.  Term,  1909,  No.  323,  Misc. 
Docket  No.  2 ;  (c)  or  where  time  is  insufficient  to  raise  question  in  first 
instance  in  lower  court:  De  Walt  v.  Bartley,  146  Pa,  525,  1892;  (d) 
jurisdiction  will  not  be  taken  where  prayer  for  injunction  is  merely 
subsidiary  to  main  purpose  of  bill :  Fargo  v.  Ry.,  81^  Pa.  266,  1875 ; 
McClure  v.  Ry.,  32  L.  I.  448, 1875;  (e)  as,  for  example,  where  the  bill 
seeks  construction  of  contract  between  street  railway  and  city,  there 
being  no  special  necessity  for  speedy  decision  shown :  Blankenburg  v. 
Transit  Co.,  Jan.  Term,  1909,  No.  323,  Misc.  Docket  No.  2,  MS.  case. 

(3)  Private  and  Municipal  Corporations,     (a)  Supreme  Court  has 
original  jurisdiction  of  injunctions  against  both  private  and  municipal 
corporations:  Wheeler  v.  Phila.,  77  Pa.  338,  1875;  Bruce  v.  Pittsburg, 
161  Pa.  517, 1894;  (b)  but  not  against  county  commissioners:  De  Walt 
v.  Bartley,  146  Pa.  525,  1892;  (c)  jurisdiction  is  limited  to  cases  where 
corporation  is  proper  party  defendant:  De  Walt  v.  Bartley,  146  Pa, 
525,  1892. 

§37. Habeas  Corpus.  They  [the  Justices  of  the 

Supreme  Court]  shall  have  original  jurisdiction  in  cases 

.  .  .  .  of  habeas  corpus.  Const.,  art.  5,  §3,  i  Purd. 
175,  pi.  105. 

57 


ORIGINAL  JURISDICTION. 


§§  37,  38  Supreme  Court — Habeas  Corpus — Mandamus  [Chap.  3, 

(1)  Jurisdiction — When  Exercised,     (a)   Supreme  Court  will  not 
discharge  prisoners  committed  for  trial  by  courts  of  competent  juris- 
diction where  remedy  is  by  appeal :  Com.  v.  Deacon,  8  S.  &  R.  72, 1822 ; 
(b)  nor  person  imprisoned  under  sentence  of  court  from  which  appeal 
lies :  Com.  v.  Keeper  of  Jail,  26  Pa.  Super.  191, 1856 ;  Com.  v.  Seeehrist, 
27  Super.  423,  1905;  (c)  nor  one  who  gives  bail  to  appear  at  quarter 
sessions  when  required,  and  then,  without  application  to  court  below, 
voluntarily  surrenders  himself  to  sheriff:  Com.  v.  Green,  185  Pa.  641, 
1898;    (d)   but  Supreme  Court  will  discharge  prisoners  indicted  on 
charge  which  is  not  indictable,  or  of  which  court  below  has  no  jurisdic- 
tion: Com.  v.  Ketner,  92  Pa.  372,  1880;  (e)  or  who  are  committed  for 
contempt  by  subordinate  court  without  showing  nature  of  contempt: 
Com.  v.  Perkins,  124  Pa.  36,  1889;  (f)  or  arrested  without  just  cause 
on  warrant  of  justice  of  peace  and  in  custody  of  constable:  Com.  v. 
Shortall,  206  Pa.  165,  1903. 

(2)  Practice,     (a)  Habeas  corpus  can  be  heard  only  by  court  in 
bane,  but  single  justice  may  grant  writ:  Gosline  v.  Place,  32  Pa.  520, 
1859.     (b)  It  is  duty  of  court,  on  hearing  of  habeas  corpus  in  favor  of 
prisoner  held  on  criminal  charge,  to  see  that  prima  facie  case  of  guilt 
is  made  out:  Com.  v.  Shortall,  206  Pa.  165,  1903;  (c)  essential  prere- 
quisite to  granting  writ  of  habeas  corpus  is  a  meritorious  and  well 
grounded  petition:  Com.  v.  Green,  185  Pa.  641,  1898;  Quay's  Case, 
189  Pa.  517,  1899;    (d)   where  petition  is  allowed,  record  may  be 
brought  up  by  certiorari  and  the  two  writs  used  as  ancillary  to  each 
other:  Gosline  v.  Place,  32  Pa.  520,  1859;  Byers  v.  Com.,  42  Pa.  89, 
1862;  Com.  v.  Supt.  County  Prison,  97  Pa.  211,  1881;  Com.  v.  Bell, 
145  Pa.  374, 1891;  Com.  v.  Keeper  Workhouse,  6  Pa.  Super.  420,  1898; 
Com.  v.  Gibbons,  9  Pa.  Super.  527,  1899;  Com.  v.  Keeper  of  Jail,  26 
Pa.  Super.  191,  1904;  (e)  where  defendants  made  no  application  to 
court  in  which  they  were  held  for  trial  to  correct  any  errors  in  pro- 
ceedings before  one  of  judges  of  said  court  sitting  as  committing 
magistrate,  Supreme  Court  will  not  issue  certiorari:  Com.  v.  Green, 
185  Pa.  641,  1898. 

§38.  —  —  Mandamus —  (A)  Generally.  They  [the 
Justices  of  the  Supreme  Court]  shall  have  original  juris- 
diction in  cases  ....  of  mandamus  to  courts  of  in- 
ferior jurisdiction.  Const.,  art.  5,  §3,  i  Purd.  175,  pi.  105. 

58 


SUPREME  COURT. 


§§  34-41]  Mandamus  §  38 

(B)  Certifying  from  One  District  to  Another. 

The  Supreme  Court  in  any  district  shall  exercise,  through- 
out the  state,  original  jurisdiction  [in  mandamus]  in  the 
cases  authorized  by  the  organic  law  of  the  state,  and  if  not 
decided  before  the  close  of  its  session  in  said  district  shall 
cause  the  same  to  be  certified  to  and  filed  for  action  with 
the  prothonotary  of  said  court  in  the  district  within  which 
it  shall  be  next  in  session,  and  so  to  be  certified  from  dis- 
trict to  district  until  finally  decided.  Act  June  8,  1893,  §32, 
P.  L.  345,  3  Purd.  2431,  pi.  32. 

—  —  —  (C)  Hearing  and  Judgment — Damages  and 
Costs.  The  Supreme  Court  in  such  cases  [of  mandamus] 
shall  dispose  of  all  issues  of  fact  arising  therein  in  such 
manner  as  may  be  deemed  just  and  reasonable,  and  shall 
enter  such  judgments,  orders  or  decrees  and  in  such  man- 
ner and  on  such  terms  as  to  it  may  seem  proper,  and  to  that 
end  may  make  all  necessary  rules  and  regulations.  Dam- 
ages and  costs  allowed  by  this  act  and  awarded  by  the  Su- 
preme Court  shall  be  recovered  in  the  manner  said  court 
may  direct.  Act  June  8,  1893,  §33,  P.  L.  345,  3  Purd.  2431, 

Pi-  33- 

(1)  Extent  of  Jurisdiction.  (a)  Original  jurisdiction  in  man- 
damus is  expressly  restricted  to  the  courts  of  inferior  jurisdic- 
tion, and  does  not  extend  to  state  officers:  Com.  v.  Hartranft,  77  Pa. 
154, 1874;  (b)  Supreme  Court  cannot  issue  mandamus  to  judge  of  sub- 
ordinate court  to  compel  him  to  sign  bill  of  exceptions :  Drexel  v.  Man, 
6  W.  &  S.  386, 1843 ;  (c)  nor  to  compel  court  to  amend  its  record :  Com. 
v.  Hultz,  6  Pa.  469, 1847 ;  (d)  nor  to  admit  an  attorney :  Com.  v.  Com- 
mon Pleas,  1  S.  &  R.  187,  1814;  (e)  nor  to  restore  one  who  has  been 
disbarred:  Com.  v.  District  Court,  5  W.  &  S.  272,  1843;  (f)  nor  to 
dismiss  auditor  and  order  trial  in  open  court :  Powel  's  Est.,  209  Pa.  76, 
1904;  (g)  nor  to  make  any  particular  decision,  but  merely  to  decide; 
Com.  v,  Common  Pleas,  3  Bin.  273,  1810;  Douglass  v.  Com.,  108  Pa. 
559, 1885;  Powel 's  Est.,  209  Pa.  76, 1904;  Taxpayers'  Petition,  32  C.  C. 
499 ;  15  Dist.  689, 1906 ;  (h)  nor  to  appoint  viewers  to  free  bridge  from 
toll:  Taxpayers'  Petition,  sub.  nom.,  Com.  v.  Shafer,  32  C.  C.  499,  15 

59 


ORIGINAL  AND  TERRITORIAL  JURISDICTION. 


§§  39-41          Quo  Warranto — Superior  Court — Habeas  Corpus        [Chap.  3, 

Dist.  689,  1906;  (i)  mandamus  is  not  a  substitute  for  appeal  and  does 
not  bring  up  for  review  soundness  of  discretion  used  by  lower  court, 
or  correctness  of  conclusion  reached:  Newlin's  Petition,  123  Pa.  541, 
1889;  Johnson's  License,  165  Pa.  315, 1894. 

§39. Quo  Warranto.    They  [the  Justices  of  the 

Supreme  Court]  shall  have  original  jurisdiction  in  cases 
.  .  .  .  of  quo  warranto  to  all  officers  of  the  common- 
wealth whose  jurisdiction  extends  over  the  state.  Const., 
art.  5,  §3,  I  Purd.  175,  pi.  105. 

(1)  Judges  of  Common  Pleas,  (a)  Judges  and  associate  judges 
of  common  pleas  are  officers  o*  commonwealth  within  this  section: 
Com.  v.  Dumbauld,  97  Pa.  293,  1881;  (b)  but  such  jurisdiction  is  ex- 
clusive of  common  pleas:  Leib  v.  Com.,  9  Watts  200,  1840. 

§40.  Superior  Court — Territorial  Jurisdiction.  Its 
[the  Superior  Court's]  jurisdiction  shall  extend  though- 
out  the  commonwealth.  Act  June  24,  1895,  §i,  P.  L.  212, 
4  Purd.  4498,  pi.  i. 

(1)  General  Power  of  Superior  Court.  Sec.  5  of  the  Act  of  1895 
gives  Superior  Court  general  power  to  execute  every  writ  or  process 
necessary  to  exercise  of  its  jurisdiction  and  enforcement  of  its  decrees, 
such  writs  to  be  served  and  enforced  in  every  county  of  the  common- 
wealth. It  also  gives  power  to  fix  return  days  and  regulate  terms. 
The  first  paragraph  of  §8  of  said  act  gives  the  power  to  make  rules  of 
practice,  but  provides  that  the  practice  shall  be  governed  by  the  Su- 
preme Court  Rules  so  far  as  they  are  applicable  to  matters  not  pro- 
vided for  by  rules  adopted  by  the  Superior  Court.  Rule  44,  of  the  Su- 
perior Court,  contains  a  similar  provision.  See  §19,  above. 

§41.  —  Original  Jurisdiction — Habeas  Corpus.  The 
said  court  shall  have  no  original  jurisdiction,  except  that 
it,  or  any  judge  thereof,  shall  have  full  power  and  author- 
ity, when  and  as  often  as  there  may  be  occasion,  to  issue 
writs  of  habeas  corpus  returnable  to  the  said  court.  Act 
May  5,  1899,  §3,  P.  L.  248,  4  Purd.  4500,  pi.  17. 

(1)     Jurisdiction — When  Exercised,     (a)  The  Superior  Court  will 

60 


SUPERIOR  COURT. 


§§34-41]  Habeas  Corpus  §41 

issue  writ  of  habeas  corpus  at  instance  of  person  convicted  in  quarter 
sessions  who  alleges  that  court  below  has  illegally  altered  its  sentence 
after  expiration  of  term  at  which  it  was  imposed:  Com.  v.  Keeper 
Workhouse,  6  Pa.  Super.  420,  1898;  (b)  and  at  instance  of  witness  in 
contested  election  case  committed  for  contempt  of  court  in  refusing  to 
answer  questions :  Com.  v.  Gibbons,  9  Pa.  Super.  527, 1899 ;  affirmed  by 
Supreme  Court,  Kelly's  Case,  200  Pa.  430, 1901;  (c)  but  where  relator 
has  been  committed  for  contempt,  Superior  Court  can  inquire  only  into 
jurisdiction  of  court  below  to  make  order :  Jack  v.  Twyf ord,  10  Pa.  Su- 
per. 475,  1899;  Com.  v.  Gibbons,  9  Pa.  Super.  527,  1899;  (d)  jurisdic- 
tion will  not  be  exercised  in  such  manner  as  to  hinder  trial  of  pending 
indictments:  Com.  v.  Keeper  of  Jail,  26  Pa.  Super.  191, 1904;  (e)  nor 
where  Superior  Court  has  no  jurisdiction  by  reason  of  amount  in- 
volved :  Com.  v.  McAleese,  10  Pa.  Super.  286,  1899. 


61 


GENERAL  JURISDICTION  AND  PARTIES. 


§42  Synopsis  of  Chapter — General  Powers  [Chap.  4, 

CHAPTER  IV. 

APPELLATE    JURISDICTION    AND    PARTIES — GENERALLY. 

§42.    Generally. 

(A)  Constitutional  Provision. 

(B)  Power  to  Correct  Errors  of  Inferior  Courts. 

(C)  Power  to  Issue  Remedial  Writs. 

(D)  Power  to  Issue  Execution  for  Costs,  etc. 
§43.    Judgments  at  Law — Writ  of  Error — Parties. 
§44.    Orders  and  Decrees  in  Equity. 

(A)  Generally. 

(B)  Injunctions — Granting    and    Refusing    Special    Injunc- 

tions. 

(C)  Jurisdiction — When  Reviewable. 
§45.    Decrees  in  Orphans'  Court. 

§46.    Criminal  Cases. 

(A)  Generally. 

(B)  Murder  and  Voluntary  Manslaughter — Special  Allow- 

ance Unnecessary. 

(C)  Murder  of  First  Degree — Court  to  Examine  for  In- 

gredients. 

(D)  Exceptions  in  all  Cases — Appeal  by  Commonwealth — 

Special  Allocatur. 

(E)  Appeal  from  Oyer  and  Terminer  Matter  of  Right. 
§47.    Appeal  not  Precluded  by  Prior  Appeal  of  Adverse  Party. 

§42.  Generally  —  (A)  Constitutional  Provision.  They 
[the  judges  of  the  appellate  courts]  shall  have  appellate 
jurisdiction  by  appeal,  certiorari  or  writ  of  error  in  all 
cases,  as  is  now  or  may  hereafter  be  provided  by  law. 
Const.,  art.  5,  §3,  i  Purd.  175,  pi.  105. 

(B)  Power  to  Correct  Errors  of  Inferior  Courts.  The 
said  Judges  [of  the  Supreme  Court]  or  any  two  of  them, 
shall  have  full  power  to  hold  the  said  court  and  therein 
to  hear  and  determine  all  causes,  matters  and  things,  cog- 

62 


GENERAL  APPELLATE  POWERS. 


§§  42-47]  Given  Originally  to  Supreme  Court  §  42 

nizable  in  the  said  court;  and  also  to  hear  and  determine 
all  and  all  manner  of  pleas,  plaints  and  causes  which  shall 
be  removed  or  brought  there  from  the  respective  general 
quarter  sessions  of  the  peace  and  courts  of  common  pleas, 
to   be   held   for  the   respective   counties   of   Philadelphia, 
Chester  and  Bucks,  as  also  for  the  City  of  Philadelphia,  or 
.from  any  other  court  of  this  province,  by  virtue  of  any  ot 
the  said  writs ;  and  to  examine  and  correct  all  and  all  man- 
ner of  errors  of  the  justices  and  magistrates  of  this  province 
in  their  judgments,  process  and  proceedings  in  the  said 
courts,  as  well  in  all  pleas  of  the  crown,  as  in  all  pleas  real, 
personal  and  mixed;  and  thereupon  to  reverse  or  affirm 
the  said  judgments  as  the  law  doth  or  shall  direct;  and 
also  to  examine,  correct  and  punish  the  contempts,  omis- 
sions and  neglects,  favors,  corruptions  and  defaults  of  all 
or  any  of  the  justices  of  peace,  sheriffs,  coroners,  clerks  and 
ether  officers,  within  the  said  respective  counties;  and  gen- 
erally shall  minister  justice  to  all  persons,  and  exercise  the 
jurisdictions  and  powers  hereby  granted,  concerning  all 
and  singular  the  premises,  according  to  law,  as  fully  and 
amply,  to  all  intents  and  purposes  whatsoever  as  the  jus- 
tices of  the  court  of  King's  bench,  common  pleas  and  ex- 
chequer at  Westminster,  or  any  of  them  may  or  can  do. 
Act  May  22,  1722,  §13,  i  Sm.  L.  140,  4  Purd.  4512,  pi.  26. 
The  Supreme  Court  of  this  commonwealth  shall  have 
power  to  hear  and  determine  all,  and  all  manner  of  pleas, 
plaints  and  causes  which   shall  be  brought   or  removed 
there  from  any  other  court  of  this  commonwealth  by  vir- 
tue of  any  writ  or  process  issued  by  the  said  court  or  any 
judge  thereof,  for  that  purpose  in  the  manner  now  prac- 
ticed and  allowed;   to   examine   and   correct   all   and   all 
manner  of  errors  of  the  justices,  magistrates  and  courts 
of  this  commonwealth,  in  the  process,  proceedings,  judg- 
ments and  decrees  as  well  as  in  criminal  as  in  civil  pleas  or 
proceedings,  and  thereupon  to  reverse,  modify  or  affirm 
such  judgments  and  decrees  or  proceedings  as  the  law 

63 


GENERAL  JURISDICTION  AND  PARTIES. 
§  42  General  Powers  [Chap.  4, 

doth  or  shall  direct;  and  generally  to  minister  justice  to 
all  persons  in  all  matters  whatsoever,  as  full  and  amply  to 
all  intents  and  purposes,  as  the  said  court  has  heretofore 
had  power  to  do  under  the  constitution  and  laws  of  this 
commonwealth.  Act  June  16,  1836,  §i,  P.  L.  785,  4  Purd. 
4514,  pi.  30. 

(C)  Power  to  Issue  Remedial  Writs.    The  Judges  of  the 
Supreme  Court  shall  have  full  power  and  authority,  when 
and  as  often  as  there  may  be  occasion,  to  issue  writs  of 
habeas  corpus,  writs  of  certiorari,  and  writs  of  error,  and 
all  remedial  and  other  writs  and  process,  returnable  to 
the  said  court.    Act  June  16,  1836,  §7,  P.  L.  785,  4  Purd. 
4514.  pi.  30.     [See  also  Acts  of  1722  and  1836  above], 

(D)  Power  to  Issue  Execution  for  Costs,  etc.    And  also 
shall  award  process  for  levying  as  well  of  such  fines,  for- 
feitures and  amerciaments  as  shall  be  estreated  into  the 
said  Supreme  Court,  as  of  the  fines,  forfeitures  and  amer- 
ciaments which  shall  be  lost,  taxed  and  set  there  and  not 
paid  to  the  uses  (to  which)  they  are  or  shall  be  appropri- 
ated.   Act  May  22,  1722,  §13.  i  Sm.  L.  140,  4  Purd.  4512, 
pi.  26. 

The  Supreme  Court  of  this  commonwealth  .... 
shall  have  power  and  is  required  to  issue  execution  or 
other  process  for  the  recovery  of  costs  which  have  accrued 
or  may  accrue  in  said  Supreme  Court,  as  well  as  in  all  cases 
which  have  been  heretofore  decided.  Act  June  16,  1836, 
§i,  P.  L.  785,  4  Purd.  4514,  pi.  30. 

Each  of  the  said  [appellate  and  lower]  courts  shall  have 
power  to  award  process  to  levy  and  recover  such  fines, 
forfeitures  and  amercements  as  shall  be  imposed,  taxed  or 
adjudged  by  them  respectively.  Act  June  16,  1836,  §20, 
P.  L.  792,  4  Purd.  4520,  pi.  48. 

(1)  General  Powers  of  Court,  (a)  The  judicial  authority  of  the  ap- 
pellate courts  extends  to  the  review  and  correction  of  all  proceedings 
of  all  inferior  courts,  except  where  such  review  is  taken  away  by 

64 


GENERAL  APPELLATE  POWERS. 


§§  42-47]    All  Proceedings  Called  "Appeal" — Modes  of  Review  Remain       §  42 

statute,  or  by  necessary  implication:  Annville  Twp.  Overseers  v. 
Smith,  2.  S.  &  E.  363,  1816;  Gosline  v.  Place,  32  Pa.  520,  1859;  Chase 
v.  Miller,  41  Pa.  403,  1862;  Schmuck  v.  Hartman,  222  Pa.  190,  1908; 
(b)  or  by  case  stated  without  reserving  the  right  of  appeal:  Chase  v. 
Miller,  41  Pa.  403,  1862.  (c)  The  court  may  issue  all  sorts  of  process 
and  use  and  adopt  all  sorts  of  legal  forms  that  are  necessary  to  give 
effect  to  this  supervisory  authority :  Gosline  v.  Place,  32  Pa.  520,  1859 ; 
Com.  v.  Shortall,  206  Pa.  165, 178,  1903;  Schmuck  v.  Hartman,  222  Pa. 
190,  1908;  (d)  the  court  cannot  acquire  jurisdiction  by  consent  of 
parties:  West's  Ap.,  3  S.  &  R.  92,  1817;  McKee  v.  Sanford,  25  Pa. 
105,  1855;  Watkins  v.  Hughes,  206  Pa.  526,  1903;  (e)  the  Act  of  1836, 
above,  is  a  re-enactment  of  the  Act  of  May  22, 1722,  §13, 1  Sm.  L.  140, 
4  Purd.  4512,  pi.  26:  Chase  v.  Miller,  41  Pa.  403,  1862;  (f)  the  Act  of 
1836  authorizes  the  Supreme  Court  to  "establish  new  writs  and  forms 
of  proceedings"  and  requires  notice  thereof  to  be  given  to  the  lower 
courts  and  to  the  Governor.  By  virtue  of  the  power  thus  conferred, 
the  rules  of  equity  practice  were  established.  See  above  §11,  (B), 
(D),  and  notes,  and  note  (4),  below. 

(2)  All  Appellate  Proceedings  are  Called  Appeals.    All  appellate 
proceedings  heretofore  taken  by  writ  of  error,  appeal  or  certiorari, 
shall  hereafter  be  taken  in  a  proceeding  to  be  called  an  appeal:  Act 
May  9,  1889,  §1  P.  L.  158,  2  Purd.  1445,  pi.  45,  §182,  below. 

(3)  All  Modes  of  Review  Remain.    Modes  of  reviewing  cases  by 
writ  of  error,  appeal  and  certiorari,  which  were  in  use  prior  to  Act 
May  9,  1889,  still  remain  applicable  to  same  kinds  of  cases,  the  only 
difference  being  that  they  are  now  all  called  by  the  same  name:  In  re 
Act  May  9,  1889  (P.  L.  158,  2  Purd.  1445,  pi.  45),  25  W.  N.  C.  361, 
1890;  Eand  v.  King,  134  Pa.  641,  1890;  Camp  Hill  Boro,  142  Pa.  511, 
1891;  Gates  v.  R.  R.,  154  Pa.  566,  1893;  Christner  v.  John,  171  Pa. 
527,  1895;  Diamond  St.,  196  Pa.  254,  1900;  Shoup  v.  Shoup,  205  Pa. 
22, 1903;  Katharine  Water  Co.,  32  Pa.  Super.  94,  1906;  Com.  v.  Supt. 
County  Prison,  220  Pa.  401,  1908;  Campbell  v.  Erb,  35  Pa.  Super.  436, 
1908 ;  Com.  v.  Maurer,  42  Pa.  Super.  170,  1910. 

For  distinctions  and  differences  governing  writs  of  error,  appeal 
and  certiorari,  in  the  hearing  of  cases,  see  §182,  and  notes,  below. 

(4)  Superior  Court.    A  large  part  of  the  former  appellate  jurisdic- 
tion of  the  Supreme  Court  has  been  taken  away  by  creation  of  the 
Superior  Court.    See  Chapter  VI,  §108  et  seq.,  below. 

65 


GENERAL  APPELLATE  JURISDICTION  AND  PARTIES. 
§  43  Judgments  at  Law — Parties — -Final  Judgment          [Chap.  4, 

§43.  Judgments  at  Law  —  Writ  of  Error  —  Parties. 
If  any  person  shall  find  him  or  themselves  aggrieved  with 
the  judgment  of  any  of  the  said  courts  of  general  quarter 
sessions  of  the  peace  and  jail  delivery,  or  any  other  courts 
of  record  within  this  province,  it  shall  and  may  be  lawful 
to  and  for  the  party  or  parties  so  aggrieved  to  have  his 
or  their  writ  or  writs  of  error,  which  shall  be  granted  them 
of  course  in  such  manner  as  other  writs  of  error  are  to  be 
granted,  and  made  returnable  to  the  said  Supreme  Court 
of  this  province.  Act  May  22,  1722,  §9,  i  Sm.  L.  138,  2 
Purd.  1428,  pi.  i. 

(1)  Final  Judgment  Necessary,  (a)  "The  rule  is  that  a  writ  of 
error  lies  in  all  cases  where  a  court  of  record  has  given  a  final  judg- 
ment or  made  an  award  in  the  nature  of  a  final  judgment ' ' :  Tilghman, 
C.  J.,  in  Com.  v.  Common  Pleas  Judges,  3  Bin  273,  275,  1810 ;  Royer  v. 
Tate,  1  P.  &  W.  227,  1829;  Hawk  v.  Jones,  24  Pa.  127,  1854;  (b)  but 
"error  does  not  lie  before  final  judgment,  because  there  would  be  no 
end  to  suits  if  they  might  be  removed  to  the  Superior  Court  on  sugges- 
tion of  error  in  every  stage  of  the  proceedings":  Tilghman,  C.  J.,  in 
Lewis  v.  Wallick,  3  S.  &  R.  410,  411,  1817;  Reed's  Appeal,  71  Pa.  378, 
1872;  Knebel  v.  Baumgarden,  1  Schuyl.  Leg.  Rec.  137,  1879;  (c)  appeal 
will  not  be  entertained  even  with  consent  of  parties,  where  no  final 
judgment  or  decree  has  been  entered  below:  West's  Appeal,  3  S.  &  R. 
92,  1817;  Watkins  v.  Hughes,  206  Pa.  526,  1903.  (d)  No  appeal  lies 
from  judgment  entered  on  warrant  by  prothonotaxy,  as  court  below 
has  not  passed  upon  it:  Wilson  v.  Colwell,  3  Watts,  212,  1834;  Pettit 
v.  Clever,  219  Pa.  428,  1908;  (e)  the  word  "judgment"  includes  defi- 
nite decrees  and  orders  in  nature  of  judgments:  Salem  Twp.  Road, 
103  Pa.  251,  253,  1883;  (f)  error  does  not  lie  before  payment  of  the 
jury  fee,  where  judgment  was  directed  to  be  entered  on  payment  of 
the  jury  fee;  Wolff  v.  Wilson,  25  Pa.  Super.  266,  1904;  (g)  nor  where 
the  judgment  has  been  entered  without  authority:  Commonwealth  v. 
Mitchell,  80  Pa.  57,  1875;  McGlue  v.  Phila.,  105  Pa.  236,  1884;  (h)  or 
where  judgment  has  not  in  fact  been  entered:  Davis  v.  Barr,  5  S.  &  R. 
516,  1820;  Harper  v.  Roberts,  22  Pa.  194,  1853;  Kimmel  v.  Johnson, 
18  Pa.  Super.  429,  1901;  Wolff  v.  Wilson,  25  Pa.  Super.  266,  1904; 
Phila.  v.  Miller,  27  Pa.  Super.  11,  1904  ;'(i)  even  though  it  appears, 
from  nature  of  opinion  that  decree  was  intended:  Dorscheimer 's  Est., 
9  Pa.  Super.  422,  1899. 

66 


JUDGMENTS  AT  LAW. 


§§42-47]  What  Judgments  are  Final  §43  (2)  (a)-(m) 

(2)  What  Judgments  are  Final,  (a)  Judgment  is  final  which,  while 
it  remains  in  force,  prevents  all  further  proceedings  in  the  suit :  Beale 
v.  Dougherty,  3  Binn.  432,  436,  1811.  (b)  "A  final  judgment  is  such 
as  at  once  puts  an  end  to  the  action  by  determining  that  the  plaintiff 
is  or  is  not  entitled  to  recover  and  the  amount  in  debt  or  damages  to 
be  recovered":  Mahoning  County  Bank's  Appeal,  32  Pa.  158,  1858. 
In  the  following  cases,  judgments  have  been  held  to  be  final:  (c) 
where  amount,  though  not  specified,  can  be  made  certain  by  calcula- 
tion: Lewis  v.  Smith,  2  S.  &  R.  142,  155,  1815;  Com.  v.  Baldwin,  1 
Watts  54,  1832;  McClung  v.  Murphy,  2  Miles  177,  1838;  Hays  v. 
Tryon,  2  Miles  208,  1838;  Sellers  v.  Burk,  47  Pa.  344,  1864;  Fulton's 
Est.,  51  Pa.  204,  1866;  Campbell  v.  Floyd,  153  Pa.  84,  1893;  Riott  v. 
Blackstone,  10  Pa.  Super.  591,  1899;  (d)  setting  aside  sheriff's  return 
of  summons,  where  it  is  probable  that  no  subsequent  service  can  be 
made:  Ben  Franklin  Coal  Co.  v.  Water  Co.,  25  Pa.  Super.  628,  1908. 
Compare  Bennethum  v.  Bowers,  133  Pa.  332,  1890,  where  the  Supreme 
Court  considered  such  appeal  and  reversed  an  order  of  the  lower 
court  setting  aside  service  of  writ,  but  expressly  declined  to  decide 
whether  such  order  was  interlocutory  or  final,  on  the  ground  that  the 
point  was  not  raised  or  argued.  Paxson,  C.  J.,  said  at  page  337: 
"There  is  much  reason  for  holding  that  an  order  setting  aside  the 
service  is  but  interlocutory."  (e)  Dismissing  appeal  from  magistrate 
or  justice  of  peace :  Beale  v.  Dougherty,  3  Binn.  432,  1811 ;  (f )  revers- 
ing judgment  of  justice  in  action  by  commonwealth  for  penalty  for 
filling  ditch  under  §67  of  Act  June  13, 1836,  P.  L.  565,  4  Purd.  4289,  pi. 
182;  Com.  v.  Butler,  39  Pa.  Super.  125,  1909;  (g)  entering  non-suit 
for  want  of  more  specific  statement :  Murdock  v.  Martin,  132  Pa.  86, 
1890 ;  (h)  making  absolute  rule  for  more  specific  statement  where  the 
order,  in  effect,  is  judgment  for  defendant:  Bradly  v.  Potts,  155  Pa. 
418,  1893;  (i)  discharging  rule  under  Sheriff's  Interpleader  Act  of 
May  26,  1897,  P.  L.  95,  2  Purd.  1551,  et  seq.,  as  to  claimant  deprived 
of  right  of  action  of  trespass  against  sheriff:  Book  v.  Sharpe,  189  Pa. 
44,  1899;  (j)  allowing  alimony  and  counsel  fees  in  divorce,  after  dis- 
continuance: Bockman's  Ap.,  2  Walk.  285,  1885;  (k)  order  in  habeas 
corpus  discharging  relator:  Doyle  v.  Com.,  107  Pa.  20,  1884;  Com.  v. 
Butler,  19  Pa.  Super.  626,  1902;  (1)  order  directing  witnesses  to  an- 
swer question  under  rule  to  take  depositions  without  regard  to  his 
being  aged,  infirm  or  going,  is  final  as  to  such  witness:  International 
Coal  Min.  Co.  v.  R.  R.,  214  Pa.  469,  1906;  (m)  dissolving  attachment 

67 


GENERAL  APPELLATE  JURISDICTION  AND  PARTIES. 

§43  (2)  (n)-(d2)  What   Judgments   are   Final  [Chap.  4, 

under  Act  March  17,  1869,  P.  L.  10,  1  Purd.  265,  pi.  108,  where  de- 
fendant has  not  been  served  and  has  not  appeared:  Sailor  Planing 
Mill  Co.  v.  Moyer,  35  Pa.  Super.  503,  1908;  (n)  dissolving  foreign  at- 
tachment on  rule  to  show  cause  of  action:  Hallowell  v.  Canning  Co., 
16  Pa.  Super.  60,  1901;  (o)  judgment  in  feigned  issue  to  try  right  to 
proceeds  of  sheriff's  sale:  Brown's  Ap.,  26  Pa.  490,  1856;  (p)  but  it  is 
better  practice  to  await  final  decree  on  distribution:  Reed's  Ap.,  71 
Pa.  378,  1872;  (q)  entering  judgment  on  award  of  arbitrators  under 
compulsory  arbitration  act :  Ebersoll  v.  Krug,  3  Binn.  528,  1811 ;  Lewis 
v.  England,  4  Binn.  5,  1811;  Sicard  v.  Peterson,  3  S.  &  R.  468,  1817; 
(r)  setting  aside  award  of  arbitrators  on  ground  that  declaration  con- 
tains no  cause  of  action:  Orlandy  v.  McNamara,  9  Watts,  192,  1840; 
(s)  striking  off  award,  where  it  was  agreed  that  action  of  arbitrators 
was  to  be  final:  Wynn  v.  Ballas,  34  Pa.  160,  1859;  (t)  striking  off  me- 
chanics' lien:  Hill  v.  Newman,  38  Pa.  151,  1861;  Carte  v.  Caldwell, 
147  Pa.  370,  1892;  Orr  v.  Rogers,  29  Pa.  Super.  175,  1905;  (u)  sus- 
taining exceptions  and  referring  award  back  to  arbitrators  with  di- 
rections how  to  find :  Gunn  v.  Bowers,  2  Mona.  663, 1889 ;  see  also  Gunn 
v.  Bowers,  126  Pa.  552,  1889;  (v)  appointing  viewers  and  approving 
bond  in  proceedings  by  street  railway  company  to  appropriate  use  of 
tracks  of  another  company  under  Act  of  May  21, 1895,  P.  L.  93 ;  Phila. 
M.  &  S.  Ry.'s  Petition,  203  Pa.  354,  1902;  (w)  sustaining  exceptions 
to  report  of  viewers  in  condemnation  proceedings,  where  railroad  com- 
pany has  altered  its  route  since  report  was  filed :  Beale  v.  R.  R.,  86  Pa. 
509,  1878;  (x)  arresting  judgment:  Skinner  v.  Robeson,  4  Yeates  375, 
1807;  Benjamin  v.  Armstrong,  2  S.  &  R.  392,  1816;  (y)  reducing 
amount  of  judgment:  Fitzgerald  v.  Caldwell,  Add.  119,  1793;  (z) 
marking  judgment  to  use  of  surety  of  debtor:  Burns  v.  Bank,  1  P.  & 
W.  395,  1830;  (a2)  awarding,  staying  for  an  indefinite  time,  setting 
aside  or  refusing  to  set  aside  execution:  Jarrett  v.  Tomlinson,  3  W. 
&  S.  114,  1842;  Harger  v.  County,  12  Pa.  251,  1849;  Patterson  v.  Pat- 
terson, 27  Pa.  40,  1856;  O'Hara  v.  R.  R.,  2  Gr.  241,  1858;  Pontius  v. 
Nesbit,  40  Pa.  309, 1861;  Feagley  v.  Norbeck,  127  Pa.  238,  1889;  Pack- 
er v.  Owens,  164  Pa.  185,  1894;  Long  v.  Bank,  211  Pa.  165,  1905;  (b2) 
setting  aside  sheriff's  sale  of  personal  property:  Mackaness  v.  Long, 
85  Pa.  158,  1878;  (c2)  entering  judgment  n.o.v.,  although  jury  fee  has 
not  been  paid:  Jones  v.  Coal  Co.,  227  Pa.  509,  1910;  (d2)  refusing 
to  strike  off  cautionary  judgment :  Monahan  v.  Auman,  42  Pa.  Super. 
480,  1910. 


68 


JUDGMENTS  AT  LAW. 


§§42-47]  Interlocutory  Judgments  §  43  (3)  (a)-(q) 

(3)  Interlocutory  Judgments,  (a)  Interlocutory  judgments  are 
such  as  are  given  in  the  middle  of  a  cause  upon  some  plea,  or  pro- 
ceeding, or  default,  which  is  only  intermediate,  and  does  not  finally 
determine  or  complete  the  suit:  3  Blackstone's  Commentaries,  396; 
Holden  v.  McMakin,  1  Pars.  270,  288,  1847.  In  the  following  cases, 
judgments  and  orders  have  been  held  interlocutory:  (b)  refusing  to 
set  aside  service  of  writ :  Lycoming  Fire  Ins.  Co.  v.  Storrs,  97  Pa.  354, 
1881;  Phila.  &  Read.  R.  R.  v.  Snowden,  161  Pa.  201,  1894;  Platt  v. 
Coal  Mining  Co.,  191  Pa.  215,  1899;  see  (h3),  this  note;  (c)  or  sub- 
poena in  divorce:  Tobin  v.  Tobin,  32  Pa.  Super.  186, 1906;  (d)  quaere, 
whether  setting  aside  service  of  writ  is  interlocutory:  Bennethum  v. 
Bowers,  133  Pa.  332,  1890  (see  note  (2)  (d),  this  section) ;  (e)  refus- 
ing to  enter  discontinuance:  Bach  v.  Burke,  141  Pa.  649,  1891;  (f) 
striking  off  dilatory  pleas,  denying  motions,  or  overruling  demurrers: 
Reading  v.  Bently,  2  Mona.  721,  1889;  Wallace  v.  Jameson,  179  Pa. 
94,  1897;  Leedom  v.  Ry.,  217  Pa,  278,  1907;  (g)  requiring  production 
of  books  and  papers  in  advance  of  trial:  Logan  v.  R.  R.,  132  Pa.  403, 
1890;  Quinn  v.  R.  R.,  219  Pa.  24,  1907;  (h)  withdrawing  juror:  Eichel- 
berger  v.  Nicholson,  1  S.  &  R.  430,  1815;  (i)  sustaining  demurrer  in 
certain  respects  with  leave  to  plaintiff  to  amend  statement :  Cherry 
Twp.  v.  County,  30  Pa.  Super.  502,  1906;  (j)  discharging  rule  for  leave 
to  amend  statement:  Com.  v.  Magee,  33  Pa.  Super.  257,  1907;  (k)  re- 
fusing to  strike  off  appeal  to  common  pleas  from  award  of  arbitra- 
tors: Kendrick  v.  Overstreet,  3  S.  &  R.  357,  1817;  Gardner  v.  Lefevre, 
1  P.  &  W.  73,  1829;  Schultz  v.  Refining  Co.,  174  Pa.  287,  1896;  Drum 
v.  Uplinger,  9  Pa.  Super.  404,  1899;  (1)  refusing  to  strike  off  appeal 
from  justice  of  the  peace:  Barclay  v.  Colwell,  4  W.  N.  C.  440,  1877; 
Cupples  Wooden  Ware  Co.  v.  Howe,  164  Pa.  85,  1894;  Anderson  v. 
McMichael,  6  Pa.  Super.  114,  1897;  Powell  v.  Gayley,  9  Pa.  Super. 
405,  1899;  Com.  v.  Luckey,  30  Pa.  Super.  441,  1906;  (m)  making  ab- 
solute rule  for  appeal  nunc  pro  tune  from  judgment  of  justice:  Yost 
v.  Davidson,  5  Pa.  Super.  469,  1897 ;  Reiseck  v.  Lanahan,  10  Pa.  Super. 
281,  1899;  (n)  making  absolute  rule  to  bring  ejectment:  Gabler  v. 
Black,  210  Pa.  541,  1904;  (o)  discharging  rule  for  judgment  against 
garnishee  in  answer  to  interrogatories:  Brendlinger  v.  Riegel,  37  Pa. 
Super.  474,  1908;  (p)  refusing  to  quash  writ  of  foreign  attachment: 
Phila.  &  Read.  R.  R.  v.  Snowden,  161  Pa.  201,  1894;  Bellah  v.  Poole, 
202  Pa.  71,  1902;  Dempsey  v.  Savings  Co.,  26  Pa.  Super.  633,  1904; 
(q)  dissolving,  quashing  or  refusing  to  dissolve  or  quash  attachment 

69 


GENERAL  APPELLATE  JURISDICTION  AND  PARTIES. 

§43  (3)(r)-(g2)  Interlocutory  Judgments  [Chap.  4, 

under  Act  March  17,  1869,  P.  L.  10,  1  Purd.  265,  pi.  108:  Jutte  v. 
Conley,  4  Penny.  90,  1884;  Hoppes  v.  Houtz,  133  Pa.  34,  1890;  Moss 
v.  Mitchell,  174  Pa.  517,  1896;  Lafferty  v.  Corcoran,  175  Pa.  5,  1896; 
Johnstone  v.  Menagh,  4  Pa.  Super.  154,  1897;  Slingluff  v.  Sisler,  193 
Pa.  264,  1899 ;  (r)  contra,  where  writ  is  dissolved  in  case  where  defen- 
dant has  not  been  served  and  has  not  appeared:  Sailor  Planing  Mill 
Co.  v.  Moyer,  35  Pa.  Super.  503,  1908;  (s)  permitting  intervention  in 
attachment  under  Act  of  1869:  Sailor  Planing  Mill  v.  Moyer,  35 
Pa.  Super.  503,  1908;  (t)  refusing  to  quash  petition  in  contested  elec- 
tion case:  Moock  v.  Conrad,  155  Pa.  586,  1893;  (u)  refusing  to  dis- 
miss writ  for  want  of  jurisdiction :  Price  v.  Coal  &  Coke  Co.,  208  Pa. 
395,  1904;  (v)  refusing  to  strike  off  mechanics'  lien:  Keemer  v.  Herr, 
2  Penny.  175,  1882;  Carter  v.  Caldwell,  147  Pa.  370,  1892;  Kurrie  v. 
Cottingham,  209  Pa.  12,  1904;  Warren  v.  Johnson,  33  Pa.  Super.  617, 
1907;  Breitweiser  Co.  v.  Scott,  33  Pa.  Super,  627,  1907;  Miller  v.  Fitz, 
41  Pa.  Super.  582,  1910;  or  municipal  claim:  Phila.  v.  Christman,  6 
Pa.  Super.  29,  1897;  (w)  sustaining  exceptions  to  report  of  referee 
without  directing  entry  of  judgment:  McGlue  v.  Phila.,  105  Pa.  236, 
1884;  (x)  sustaining  some  of  the  exceptions  to  auditor's  report  and 
referring  same  back  to  auditor :  Moore  v.  Park  Co.,  196  Pa.  519,  1900 ; 
(y)  discharging  rule  to  strike  off  appeal  from  report  of  county  audi- 
tors: Moore's  Ap.,  203  Pa.  376,  1902;  Huntingdon  Co.  v.  Mason,  21 
Pa.  Super.  148,  1902;  (z)  order  for  appointment  of  viewers  under  Act 
May  24,  1878,  P.  L.  129,  1  Purd.  521,  pi.  270 :  Washington  Street,  30 
Pa.  Super.  542,  1906;  (a2)  discharging  rule  to  show  cause  why  ap- 
pointment of  viewers  should  not  be  revoked :  Com.  v.  Stephens,  9  Pa. 
Super.  218,  1899;  see  note  (2)  (w),  this  section;  (b2)  setting  aside  re- 
port of  viewers :  Selin  's  Grove  Road,  2  S.  &  E.  419, 1816 ;  Kiskiminitas 
Twp.  Road,  32  Pa.  9,  1858;  Irwin's  Ap.,  7  Pa.  Super.  354,  1898;  Bar- 
nett's  Case,  28  Pa.  Super.  361,  1905;  Perry  Twp.  Road,  36  Pa.  Super, 
131,  1908;  (c2)  overruling  exceptions  to  report  of  viewers  under  Lat- 
eral Railroad  Act  of  May  5,  1832,  P.  L.  501,  pending  appeal  to  com- 
mon pleas:  Hall's  Ap.,  56  Pa.  238,  1868;  (d2)  also  under  Act  May  16, 
1891,  P.  L.  71,  3  Purd.  2759,  pi.  165;  Penna.  Steel  Co.'s  Ap.,  161  Pa. 
571, 1894;  (e2)  setting  aside  rule  of  reference  and  award  of  arbitrators : 
Erie  Bank  v.  Brawley,  8  Watts  530,  1839 ;  Ranck  v.  Whitaker,  4  W.  N. 
C.  69,  1877;  (f2)  reinstating  appeal  from  arbitrators:  Straub  v. 
Smith,  2  S.  &  R.  382,  1816;  (g2)  discharging  rule  to  show  cause  why 
suit  should  not  be  dismissed  because  cause  of  action  had  been  pleaded 


JUDGMENTS  AT  LAW. 


§§42-47]  Interlocutory   Judgments  §  43  (3)  (h2)-(z2) 

in  set-off  in  another  suit  between  same  parties:  Price  v.  Coal  &  Coke 
Co.,  208  Pa.  395,  1904;  (h2)  directing  form  of  proceedings  on  appea1 
from  assessment  of  taxes:  Chew  v.  Phila.,  35  Pa.  Super.  66,  1907;  (i2) 
appointing  commissioners  to  divide  municipality  into  election  districts 
and  refusing  to  quash  proceedings:  Guffey's  Ap.,  7  Pa.  Super.  478, 
1898;  (J2)  failing  to  decree  as  to  balance  of  land  in  partition  remain- 
ing untaken  and  unsold:  Hawk  v.  Jones,  24  Pa.  127,  1854;  (k2)  sub- 
stituting parties  by  sci.  fa.:  Bossier  v.  Johns,  2  P.  &  W.  331,  1811;  (12) 
making  absolute  rule  for  alternative  mandamus:  Saucon  Twp.  Super- 
visors v.  Brodhead,  5  Sad.  587,  1887;  (m2)  order  continuing  case  in 
quo  warranto  pending  notice  to  substituted  defendants :  Com.  v.  Moore, 
199  Pa.  160,  1901;  (n2)  order  dismissing  committee  of  lunatic  and 
appointing  another:  Black's  Case,  18  Pa.  434,  1852;  (o2)  order  in 
habeas  corpus  remanding  child  to  custody  of  its  father  and  continuing 
proceedings  for  further  consideration:  Com.  v.  Blatt,  165  Pa.  213, 
1895;  (p2)  refusing  petition  by  father  for  issue  to  determine  pater- 
nity of  child,  in  proceedings  by  mother  under  Act  April  13,  1867,  P. 
L.  78,  1  Purd.  Dig.1220,  pl.8,  for  order  on  father  for  support  of  child : 
Com.  v.  Nagle,  31  Pa.  Super.  175,  1906;  (q2)  entering  judgment  quod 
computet  in  account  render:  Beitler  v.  Zeigler,  1  P.  &  W.  135,  1829; 
Hall  v.  Haines,  38  Pa.  Super.  517,  1909;  (r2)  entering  judgment  for 
plaintiff  on  demurrer  where  damages  remain  to  be  assessed:  Logan  v. 
Jennings,  4  Rawle  355,  1834;  (s2)  entering  judgment  by  default  for 
want  of  appearance,  where  damages  are  not  assessed :  Snyder  v.  Flan- 
nigan,  (S.  C.)  6  Leg.  &  Ins.  Rep.  11,  1864;  but  see  note  (2)  (c)  this 
section;  (t2)  entering  judgment  on  submission  to  court  without  jury 
under  Act  of  1874,  before  judgment  on  exceptions  filed :  Com.  v.  Mitch- 
ell, 80  Pa.  1875;  (u2)  order  directing  judgment  n.o.v.  in  favor  of  gar- 
nishee,  but  where  judgment  has  not  been  actually  entered :  Keystone 
Brew.  Co.  v.  Canavan,  218  Pa.  161,  1907;  (v2)  refusing  to  enter  judg- 
ment on  whole  record  for  defendant :  Phila.  v.  Pemberton,  206  Pa.  73, 
1903;  (w2)  staying  proceedings  on  judgment  pending  determination 
of  another  suit:  O'Hara  v.  R.  R.,  2  Gr.  241,  1859;  (x2)  striking  off 
judgment  entered  by  default  against  one  of  several  joint  defendants 
while  the  issue  against  another  remains  undetermined:  Chadwick  v. 
Ober,  70  Pa.  264,  1872;  (y2)  discharging  rule  for  new  trial  in  feigned 
issue  in  proceedings  to  distribute  proceeds  of  sheriff's  sale:  Knebel  v. 
Baumgarden,  1  Schuyl.  Leg.  Rec.  137,  1878;  (z2)  quashing  case  stated 
and  granting  new  trial,  where  case  stated  does  not  disclose  sufficient 


GENERAL  APPELLATE  JURISDICTION  AND  PARTIES. 

§  43  ( 3 )  ( a3 )  -  ( 5 )  ( f )      Interlocutory  Judgment— Who  are  Parties     [Chap.  4, 

facts  to  form  basis  of  intelligent  judgment :  Com.  v.  Howard,  149  Pa. 
302,  1892 ;  or  granting  new  trial  on  ground  that  verdict  is  against  evi- 
dence: Hade  v.  R.  R.,  42  Pa.  Super.  488, 1910;  (a3)  for  right  of  appeal 
from  order  opening  or  refusing  to  open  judgments,  see  §74,  below; 
(b3)  ordering  retaxation  of  costs :  Klugh  v.  R.  R.,  29  Pa.  Super.  583, 
1905;  (c3)  setting  aside  judgment  after  agreement  of  parties  to 
feigned  issue :  Davis  v.  Barr,  5  S.  &  R.  516,  1820 ;  (d3)  revoking  prior 
order  of  execution  in  sheriff's  interpleader  proceedings:  Wruble  v. 
Day,  34  Pa.  Super.  100, 1907;  (e3)  allowing  sci.  fa.  to  issue  on  tax  col- 
lector's bond:  Com.  v.  Maxwell,  34  Pa.  Super.  636,  1907;  (f3)  making 
absolute  rule  to  reconsider  order  striking  off  appeal,  and  reinstating 
appeal:  Cupples  Wooden  Ware  Co.  v.  Howe,  164  Pa.  85,  1894;  (g3) 
discharging  rule  to  show  cause  why  sheriff's  jury  appointed  to  assess 
damages  under  writ  of  inquiry  should  not  consider  evidence  of  pay- 
ment and  set-off  for  damages  suffered:  American  Soda  Water  Co.  v. 
Taggart,  46  Pa.  Super.  123,  1910;  (h3)  defendant  does  not  waive  right 
to  review  action  of  lower  court  in  discharging  rule  to  quash  writ  for 
want  of  proper  service,  by  permitting  final  judgment  to  be  taken 
against  him  for  want  of  affidavit  of  defense:  Frick  &  Lindsay  Co.  v. 
Tel.  Co.,  44  Pa.  Super.  518,  1910. 

(4)  Quarter  Sessions.     For  review  of  judgments  in  quarter  ses- 
sions, see  §46,  below. 

(5)  Parties — Who  Are.    In  general,  an  appeal  must  be  taken  by  a 
party  to  the  record,  or  by  one  who  is  interested  in  the  judgment.    The 
following  have  been  held  to  be  proper  parties:  (a)  abutting  owner  of 
premises,  in  action  for  damages  for  personal  injuries  against  borough, 
who  appears  and  defends  after  notice,  although  judgment  has  been 
satisfied  by  borough:  Fowler  v.  Boro,  17  Pa.  Super.  366,  1901;  (b)  as- 
signee in  bankruptcy  who  claims  proceeds  of  sheriff's  sale  before 
bankruptcy  proceedings  began,  from  order  of  distribution:  Rohrer's 
Ap.,  62  Pa.  498,  1870 ;  (c)  assignee  for  benefit  of  creditors,  from  judg- 
ment against  garnishees  on  attachment  execution  against  assignor: 
Bletz  v.  Haldeman,  26  Pa.  403,  1856 ;  (d)  assignee  for  benefit  of  credi- 
tors, on  behalf  of  another  assignor  interested  in  fund  for  distribution : 
Jordan's  Ap.,  107  Pa.  75, 1884;  (e)  city,  from  proceedings  to  condemn 
turnpike  under  Act  March  24,  1869,  P.  L.  525,  4  Purd.  4966,  pi.  101: 
Frankf ord  and  Bristol  Tpk.,  18  Phila.  444,  1885 ;  (f )  claimant,  on  dis- 
charge of  rule  for  issue  under  Sheriff's  Interpleader  Act  of  May  26, 
1897,  P.  L.  95,  2  Purd.  1551,  pi.  71 :  Book  v.  Sharpe,  189  Pa.  44,  1899 ; 

72 


JUDGMENTS  AT  LAW. 


§§42-47]  Parties— Who  are  §  43  (5)  (g)-(z) 

(g)  claimant  who  has  been  awarded  part  of  claim  is  not  estopped  by 
acceptance  of  award  from  appealing  as  to  balance:  Souder's  Ap.,  57 
Pa.  498,  1868;  (h)  defendant  in  attachment  execution  may  appeal 
from  judgment  against  garnishee :  McGeary  v.  Huff,  31  Pa.  Super.  401, 
1906;  but  see  (6)  (w),  below;  (i)  executor,  etc.,  who  is  representative 
of  parties  interested  in  distribution :  Koch 's  Est.,  4  Rawle,  268,  1833 ; 
Garman's  Est.,  32  Pa.  Super.  494,  1907;  (j)  or  who  is  himself  a  dis- 
tributee: Blaney's  Est.,  37  Pa.  Super.  76,  1908;  (k)  executor  who  is 
required  to  pay  beyond  his  legal  liability  by  decree  of  distribution: 
Godwin's  Est.,  22  Pa.  Super.  469,  1903;  (1)  husband  whose  wife  dies 
after  judgment  in  joint  action  brought  by  them  for  slander  of  wife: 
Stroop  v.  Swarts,  12  S.  &  R.  76,  1824;  (m)  landlord  of  defendant  of 
record  in  action  of  ejectment:  Vanhorn  v.  Frick,  3  S.  &  R.  278,  1817; 
(n)  libellant  in  divorce  from  decree  in  her  favor,  if  court  had  no  jur- 
isdiction :  English  v.  English,  19  Pa.  Super.  586,  1902 ;  (o)  lien  credi- 
tors under  Act  April  20,  1846,  P.  L.  411,  2  Purd.  1580,  pi.  147: 
Housekeeper's  Ap.,  49  Pa.  141,  1865;  (p)  lien  creditors  of  defendant 
in  execution  under  Act  June  16, 1836,  P.  L.  755,  2  Purd.  1578,  pi.  142 : 
Smith  v.  Reiff,  20  Pa.  364,  1853;  (q)  lien  creditors  of  deceased  insol- 
vent in  his  name  and  with  .his  rights  only,  except  in  cases  of  collusion: 
Watson  v.  Willard,  9  Pa.  89,  1848;  (r)  also  subsequent  lien  creditors 
in  issue  to  question  validity  of  prior  liens  on  ground  of  usury; 
Greene  v.  Tyler,  39  Pa.  361,  1861 ;  (s)  next  of  kin  of  one  of  weak  in- 
tellect and  full  age  for  whom  new  trustee  had  been  appointed,  who,  on 
citation  at  instance  of  said  next  of  kin,  filed  his  accounts,  may  appeal 
where  lower  court  dismissed  proceedings  for  want  of  interest:  Kuh- 
ler  v.  Hoover,  4  Pa.  331, 1847 ;  (t)  officer  from  whose  custody  prisoner 
was  discharged  on  habeas  corpus:  Doyle  v.  Com.,  107  Pa.  20,  1884; 
(u)  personal  representatives  of  deceased  parties:  see  note  (10),  this 
section,  and  §235  below;  (v)  remonstrant  against  liquor  license: 
Wacker's  License,  6  Pa.  Super.  323,  1898;  McCabe's  License,  11  Pa. 
Super.  560,  1899;  (w)  sheriff  pro  inter  esse  suo,  from  order  distribut- 
ing money  in  his  hands :  Hamner  v.  Griffith,  1  Gr.  193, 1855 ;  (x)  stock- 
holder or  other  member  of  corporation  liable  to  be  affected  by  decree 
amending  charter:  Grand  Lodge  A.  0.  U.  W.,  110  Pa.  613,  1885;  (y) 
sureties  of  administrator  from  decree  of  distribution  on  settlement  of 
his  account:  Garber  v.  Com.,  7  Pa.  265,  1848;  Yung's  Est.,  199  Pa.  35, 
1901 ;  (z)  terre-tenant  whose  title  is  in  jeopardy,  without  joining  legal 
parties:  Finney  v.  Crawford,  2  Watts  294,  1834;  Cadmus  v.  Jackson, 


73 


GENERAL  APPELLATE  JURISDICTION  AND  PARTIES. 

§43  (5)  (a2)-(6)  (k)      Parties— Who  are  and  Who  Are  Not         [Chap.  4, 

52  Pa.  295,  1866;  Read  v.  Husulton,  27  Leg.  Int.  198,  1870;  Mutual 
Life  Ins.  Co.  v.  Tenan,  188  Pa.  239,  1898;  (a2)  terre-tenant  brought 
on  record  by  proceedings  against  sheriff  to  execute  writ  of  habere 
facias:  Hessel  v.  Fritz,  124  Pa.  229,  1889. 

For  parties  to  appeals  allowed  by  various  statutes,  see  Chaper  V, 
§48  et  seq.,  below.  For  power  of  commonwealth  to  appeal  in  crimi- 
nal cases,  see  §46  (D),  and  note  (12)  of  that  section. 

(6)  Who  Are  Not  Parties.  The  following  have  been  held  not  to  be 
proper  parties:  (a)  Administrator  of  debtor  from  decree  of  register 
granting  letters  of  administration  on  creditor's  estate,  he  being 
stranger  to  decree:  Beeder's  Est.,  10  Pa.  261,  1849;  (b)  administra- 
tor of  minor  son  of  testatrix,  whose  estate  claims  fund  by  virtue  of 
alleged  gift  from  testatrix,  during  her  lifetime,  to  said  minor,  from 
award  of  said  fund  to  proper  legatees  under  will:  Gravenstine 's  Ap., 
2  Penny.  61,  1882;  (c)  administrator  whose  account  has  been  con- 
firmed, from  decree  of  distribution:  Gallagher's  Ap.,  89  Pa.  29,  1879; 
Fuhrman's  Est.,  21  Pa.  Super.  27,  1902;  May's  Est.,  25  Pa.  Super. 
267,  1904;  (d)  assignee  for  benefit  of  creditors,  from  decree  distrib- 
uting funds  in  his  hands:  Mellon 's  Ap.,  32  Pa.  121,  1858;  Singmas- 
ter's  Ap.,  86  Pa.  169,  1878;  Herbst's  Ap.,  90  Pa.  353,  1879;  Jordan's 
Ap.,  107  Pa.  75, 1884;  Graff  &  Co.'s  Est.,  146  Pa.  415, 1892;  Ahl's  Est., 
15  Pa.  Super.  224,  1900;  (e)  except  where  he  appeals  in  a  representa- 
tive capacity;  see  note  (5)  (c)  (d)  above,  this  section;  (f)  assignee 
of  building  association  stock,  from  decree  directing  money  paid  for 
stock  to  be  applied  on  loan  to  assignor:  Weiss 's  Ap.,  5  W.  N.  C.  423, 
1878;  (g)  attorney,  for  commissions  for  collection  of  judgment  in  pro- 
ceedings on  judgment:  McAllister's  Ap.,  59  Pa.  204,  1869;  (h)  attor- 
ney, for  counsel  fees  in  partition  proceedings:  Pereyra's  Ap.,  126  Pa. 
220,  1889;  (i)  bank,  into  which  sheriff,  since  deceased,  has  paid  pro- 
ceeds of  execution,  after  it  has  paid  money  into  court  in  submission 
to  rule:  Allegheny  Bank's  Ap.,  48  Pa.  328,  1864;  (j)  borough  joined 
with  private  corporation  as  defendant  in  equity  suit  to  restrain  ob- 
struction of  private  way,  where  decree  was  entered  against  the  de- 
fendants with  costs  on  corporation  and  there  was  nothing  to  show 
any  intention  by  borough  to  obstruct  right  of  way:  Jessop  v.  Boro., 
225  Pa.  583,  1909;  candidate  for  office,  from  order  of  court  directing 
votes  illegally  rejected  to  be  counted  for  opposing  candidate:  Morgan 
v.  Terrill,  45  Pa.  Super.  639,  1911;  (k)  claimants  who  did  not  present 
claims  before  auditor's  report  was  filed,  on  appeal  from  decree  in  fa- 

74 


JUDGMENTS  AT  LAW. 


§§42-47]  Parties— Who  are  Not  Parties          §43  (6)  (l)-(a2) 

vor  of  other  claimants:  Reamer's  Ap.,  18  Pa.  510,  1852;  claimant  of 
commissions  for  sale  of  decedent's  realty,  from  award  of  commissions 
to  another  claimant  for  same  services:  McNulty's  Est.,  230  Pa.  387, 
1911  (see  also  creditors,  etc.,  (q)-(t),  this  note);  (1)  commonwealth, 
in  certain  criminal  cases;  see  §46,  note  (12);  (m)  contestant  of  will 
who  has  withdrawn  but  not  yet  paid  costs :  Eichert  's  Est.,  155  Pa.  59, 
1893;  (n)  co-partners  who  are  mere  stake-holders  of  third  partner's 
interest:  Crawford  v.  Shriver,  139  Pa.  239,  1891;  (o)  county  having 
no  interest  in  judicial  proceedings,  in  effort  to  impugn  them  for  ir- 
regularity: Lawrence  County's  Ap.,  67  Pa.,  87,  1871;  (p)  county  in- 
tervening on  appeal  from  tax  assessment  can  raise  no  question  as  to 
change  of  venue  or  jurisdiction  of  court:  York  Haven  Water  Co.'s 
Case,  218  Pa.  578,  1907;  (q)  creditors  who  have  acquired  no  judgment 
or  lien  on  property  sold  by  sheriff  from  decree  distributing  proceeds  of 
sale:  Smith  v.  Eeiff,  20  Pa.  364,  1853;  Rudy's  Ap.,  94  Pa.  338,  1880; 
(r)  creditor  having  secured  judgment  against  decedent's  estate  after 
his  death,  from  order  of  sale  more  than  five  years  after  death:  Ever- 
man's  Ap.,  67  Pa.  335,  1871;  (s)  creditor  who  filed  no  objection  to  re- 
port of  auditor  nor  took  part  in  trial  of  issue  and  is  not  party  to 
record:  Steel  v.  Bridenbach,  7  W.  &  S.  150,  1844;  (t)  debtor  who  filed 
no  exceptions  to  auditor's  report  and  took  no  part  in  proceedings: 
Constine  's  Ap.,  1  Gr.  242, 1855 ;  (u)  debtor  to  estate  in  amount  greater 
than  claim;  Tiernan's  Est.,  33  Leg.  Int.  24,  1876;  (v)  one  of  several 
defendants  in  trespass:  Fotterall  v.  Floyd,  6  S.  &  R.  315,  1820;  see 
note  (7),  this  section;  (w)  defendant  in  original  proceedings,  where 
judgment  on  answer  is  entered  against  garnishee:  Wachter's  Case,  1 
Walk.  267, 1877;  but  see  note  (5)  (h),  above;  (x)  exceptant  who  failed 
to  file  exceptions  to  report  of  viewers  within  time  limit:  Branch  Twp. 
Road,  4  Leg.  Gaz.  413,  1872;  (y)  executor,  administrator  or  trustee 
who  is  merely  custodian  of  funds  with  no  interest  in  distribution: 
Stineman's  Ap.,  34  Pa,  394,  1859;  Sharp's  Ap.,  3  Gr.  260,  1859; 
Craig's  Ap.,  38  Pa.  330,  1861;  Axtell's  Ap.,  43  Leg.  Int.  476,  1886; 
Godwin's  Est.,  22  Pa.  Super.  469,  1903;  Wallace's  Est.,  40  Pa.  Super. 
595, 1909;  (z)  executor,  from  finding  of  auditor,  where  party  in  inter- 
est acquiesces:  Chew's  Ap.,  3  Gr.  308,  1861;  heir  of  insolvent  estate, 
from  allowance  of  claim  where  there  would  be  nothing  for  heirs  even 
if  claim  were  disallowed:  Sherman's  Est.,  45  Pa.  Super.  587,  1911; 
(a2)  husband,  where  wife  dies  after  arrest  of  judgment  in  joint  ac- 
tion for  slander  of  wife:  Stroop  v.  Swarts,  12  S.  &  R.  76,  1824; 


75 


GENERAL  APPELLATE  JURISDICTION  AND  PARTIES. 

§  43  ( 6 )  ( b2 )  -  ( 7 )  ( d )  Who  not  Parties — Joint  and  Separate  Appeals  [Chap.  4, 

(b2)  insolvent,  from  discharge  of  rule  for  appointment  of  receiver  by 
unsecured  creditor:  Good's  Case,  21  Pa.  Super.  625,  1902;  (c2)  judg- 
ment creditors  of  deceased  insolvent  defendant,  as  to  fairness  of  trans- 
fer of  legal  title  to  secure  payment  of  purchase  money  by  vendee  who 
had  sold  to  defendant:  Watson  v.  Willard,  9  Pa.  89,  1848;  (d2)  lien 
creditor  who  fails  to  appeal  from  decree  of  distribution,  although 
clearly  entitled  to  funds  in  contest:  Cash's  Ap.,  1  Pa.  166,  1845;  (e2) 
party  intervening  in  attachment  proceedings,  who  does  not  file  affi- 
davit and  recognizance  as  required  by  Act  June  16,  1836,  P.  L.  729, 
2  Purd.  1532:  Eby  v.  Guest,  94  Pa.  160,  1880;  (f2)  party  who  has 
been  granted  leave  to  withdraw  from  suit  on  payment  of  costs,  al- 
though costs  are  not  yet  paid:  Eichert's  Est.,  155  Pa.  59,  1893;  (g2) 
party  whose  name  is  not  on  record:  Steel  v.  Bridenbach,  7  W.  &  S, 
150,  1844;  Branch  Twp.  Rd,  4  Leg.  Gaz.  413,  1872;  (b.2)  prosecutor 
in  criminal  charge,  from  order  remitting  forfeiture  of  bail:  Com.  v. 
Real  Est.  Trust  Co.,  22  Pa.  Super.  235,  1903;  (12)  receiver,  where 
record  does  not  show  that  defendant  corporation  was  in  hands  of  re- 
ceiver or  that  receiver  had  intervened:  Lapeevic  v.  Ins.  Co.,  43  Pa. 
Super.  479,  1910;  (J2)  residuary  legatee  of  accountant:  Fidelity 
Trust  Co.'s  Ap.,  115  Pa.  157, 1887;  (k2)  sureties  of  deceased  guardian, 
who  made  no  claim  before  auditor:  Kern's  Est.,  18  Pa.  Super.  506, 
1901;  (12)  surety  for  administrator's  account,  as  to  proceeds  of  realty 
sold  under  partition  proceedings  for  benefit  of  heirs,  for  which  pro- 
ceeds surety  was  not  liable:  Hise's  Est.,  5  Watts  157,  1835;  (m2)  tax- 
payers who  were  refused  right  to  intervene  in  proceedings  in  the  quar- 
ter sessions  under  Act  April  22, 1887,  P.  L.  61, 1  Purd.  517,  pi.  248,  to 
collect  special  tax:  Hower's  Ap.,  127  Pa.  134,  1889;  (n.2)  trustee  who 
is  mere  stakeholder:  Mellon 's  Ap.,  32  Pa.  121,  1858;  Craig's  Ap.,  38 
Pa.  330,  1861;  see  also  (c),  (d),  (n)  and  (y)  this  note.  For  parties 
under  various  statutes,  see  Chapter  V,  §48  et  seq. 

(7)  Joint  and  Separate  Appeals,  (a)  On  judgment  in  trespass 
against  several  defendants,  one  alone  cannot  maintain  writ  of  error: 
Fotterall  v.  Floyd,  6  S.  &  R.  315,  1820;  (see  (m)  and  (n),  this  note) ; 
(b)  nor  may  plaintiffs  who  are  improperly  joined  in  action:  Haughey 
v.  Ry.,  210  Pa.  367, 1904;  (c)  party  is  entitled  to  but  one  appeal  from 
same  degree,  though  prejudiced  by  allowance  of  various  different 
claims:  Robert's  Ap.,  92  Pa.  407,  1880;  (d)  separate  and  independent 
claimants  of  fund  cannot  prosecute  joint  appeal  from  decree  of  dis- 
tribution: Sibbald's  Est.,  Brightly  N.  P.  488,  1851;  White's  Ap.,  15 

76 


JUDGMENTS  AT  LAW. 


§§  42-47]  Joint  and  Separate  Appeals  §  43  (7)  (e)-(t) 

W.  N.  C.  313,  1884;  Adamson's  Ap.,  110  Pa.  459,  1885;  Reynolds  v. 
Lumber  Co.,  175  Pa.  437,  1896;  May's  Est.,  22  Pa.  Super.  77,  1903; 
Samson's  Est.,  22  Pa.  Super.  93,  1903;  see  also  (q),  below,  this  note; 
(e)  or  from  decree  disallowing  claims:  Com.  v.  Union  Surety  Co.,  37 
Pa.  Super.  167, 1908;  (f)  having  entered  joint  appeal,  separate  and  in- 
dependent claimants  may  elect  to  prosecute  it  in  name  of  one  and 
suffer  non-pros,  as  to  others:  White's  Ap.,  15  W.  N.  C.  313,  1884;  (g) 
husband,  as  creditor,  and  wife,  as  distributee,  cannot  maintain  joint 
appeal:  Bitler's  Est.,  30  Pa.  Super.  84,  1906;  (h)  and  they  may  not 
join  in  appeal  from  judgment  on  note  which  was  stricken  off  as  to 
wife  and  opened  as  to  husband:  Gottlieb  v.  Middleberg,  23  Pa.  Super. 
525,  1903;  (i)  where  children  are  joined  as  parties  in  action  by  widow 
for  death  of  husband,  and  non-suit  is  entered,  separate  appeal  by 
children  will  be  quashed:  Haughey  v.  Rys.,  210  Pa.  367,  1905;  (j) 
surety  of  administrator  may  join  latter  in  appeal:  Yung's  Est.,  199  Pa. 
35,  1901;  (k)  administrator  and  heirs  of  life  tenant  sued  for  rents 
may  join  in  appeal:  King  v.  Brick  Co.,  30  Pa.  Super.  582,  1906;  (1) 
terre  tenant  may  appeal  without  joinder  of  legal  owner:  Finney  v. 
Crawford,  2  Watts  294,  1834;  Cadmus  v.  Jackson,  52  Pa.  295,  1866; 
Read  v.  Husulton,  27  Leg.  Int.  198,  1870;  Hessel  v.  Fritz,  124  Pa. 
229,  1889;  Mutual  Life  Ins.  Co.  v.  Tenan,  188  Pa.  239,  1898;  (m)  ap- 
peal by  one  of  two  or  more  defendants  on  behalf  of  all,  is  good :  Bon- 
ner  v.  Campbell,  48  Pa.  286,  1864;  (n)  one  defendant  may  appeal 
though  other  dissents  in  court:  Gallagher  v.  Jackson,  1  S.  &  R.  492, 
1816;  see  (a),  this  note;  (o)  judgment  on  appeal  by  one  is  no  bar 
to  appeal  by  another  who  assigns  different  errors:  Gates  v.  R.  R., 
154  Pa.  566,  1893;  (p)  several  garnishees  cannot  appeal  jointly:  Drape 
v.  Niebaum,  26  P.  L.  J.  (0.  S.)  62, 1878;  (q)  separate  and  independent 
proceedings  may  not  be  joined  in  one  appeal:  Cauley  v.  Ry.,  95  Pa. 
398,  1880;  Stout  v.  Quinn,  9  Pa.  Super.  179,  1899;  Pottsville  Bank  v. 
Cake,  12  Pa.  Super.  61,  1899;  Welsh's  Ap.,  22  Pa.  Super.  392,  1903; 
McCosh  v.  Myers,  25  Pa.  Super.  61,  1904;  (see  also  (d),  above);  (r) 
though  tried  before  same  jury  at  same  time:  Cauley  v.  Ry.,  95  Pa. 
398, 1880 ;  Com.  v.  Schollenberger,  17  Pa.  Super.  218, 1901 ;  McCosh  v. 
Myers,  25  Pa.  Super.  61,  1904;  Com.  v.  Pilnik,  29  Pa.  Super.  285, 
1905;  (s)  where  several  feigned  issues,  having  different  plaintiffs,  are 
tried  together,  separate  appeals  are  necessary:  Kimmel  v.  Johnson,  18 
Pa.  Super.  429,  1901;  (t)  it  seems  that  several  property  owners  may 
join  in  appeal  from  assessment  of  damages  in  proceedings  to  widen 


77 


GENERAL  APPELLATE  JURISDICTION  AND  PARTIES. 
§43  (7)  (t)-(9)  (d)  Joint  and  Separate  Appeal — Second  Appeal  [Chap.  4, 

street:  William  Street,  13  Pa.  Super.  266,  1900;  (u)  joint  defendant 
cannot  appeal  from  decree  overruling  plea  of  former  conviction  of  his 
co-defendant:  Com.  v.  Doughty,  139  Pa.  383,  1891;  (v)  where  on  sin- 
gle appeal  from  two  separate  judgments  appellant  requests  that  court 
consider  appeal  as  from  one  only,  he  cannot  complain  if  court  con- 
siders whole  record  and  affirms  both  judgments:  Gottlieb  v.  Middle- 
burg,  23  Pa.  Super.  525,  1903;  (w)  joint  appeal  by  persons  whose  con- 
viction before  justice  has  been  affirmed  on  certiorari,  will  not  lie :  Dur- 
bin  v.  Com.,  45  Pa.  Super.  156,  1911. 

For  statutes  allowing  joint  appeals,  see  §§  54,  56  (A),  75  and  118 
(B),  below. 

(8)  Second  Appeal,     (a)  A  second  appeal  may  be  taken  after  the 
first  is  non-prossed:  Power  v.  Frick,  2  Gr.  306, 1854;  (b)  but  not  where 
first  appeal  has  been  reviewed  on  merits :  Gibson  v.  Cummings,  25  Pa. 
231,  1855;  Rich  v.  Black,  181  Pa.  290,  1897;  (c)  question  decided  by 
first  appeal  will  not  be  reviewed  on  second  appeal :  Rich  v.  Black,  181 
Pa.  290,  1897;  (d)  more  than  one  appeal  cannot  be  taken  by  the  same 
party  at  the  same  time  from  single  decree :  Roberts 's  Ap.,  92  Pa.  407, 
1880;   (e)  appellate  court  will  not  entertain  appeal  which  is  but  an 
attempt  in  collateral  proceeding  to  obtain  second  ruling  on  question 
already  adjudicated:  Duquesne  Boro.  v.  Cole,  7  Pa.  Super.  474,  1897; 
(f )  where  more  than  one  appeal  is  taken  by  the  same  party,  appellate 
court  will  dismiss  all  but  one:  Roberts 's  Ap.,  92  Pa.  407,  1880;  (g) 
Superior  Court  will  not  consider  question  decided  by  Supreme  Court 
on  substantially  the  same  evidence:  Collins  v.  Busch,  15  Pa.  Super. 
255,  1900. 

As  to  appeals  by  both  parties,  see  §47,  below. 

(9)  Waiver  of  Right  to  Appeal,     (a)   Right  to  appeal  may  be 
waived  by  agreement:  Galbreath  v.  Colt,  4  Yeates  551,  1808;  Lewis's 
Ap.,  91  Pa.  359,  1880;  Hostetter's  Ap.,  92  Pa.  132,  1880;  Cawley  v. 
Bohan,  120  Pa.  295,  1888;   (b)   as,  for  example,  where  lease  waives 
right  to  writ  of  error,  objection  or  exception:  Groll  v.  Gegenheimer, 
147  Pa.  162,  1892;  Seagrave  v.  Lacy,  28  Pa,  Super.  586,  1905;  Rovno 
v.  Lorentz,  32  Pa.  Super.  162,  1906 ;  Schneider  v.  Bates,  37  Pa.  Super. 
432,  1908;  (c)  or  where  note  contains  waiver:  Watson  v.  Welter,  91 
Pa.  385, 1879 ;  Cawley  v.  Bohan,  120  Pa.  295,  1888 ;  Soden  v.  Wheaton, 
6  C.  C.  416, 1887;  Snyder  v.  Halter,  6  C.  C.  418, 1887;  (d)  except  where 
appeal  depends  on  matters  occurring  since  execution  of  note;  Wells 
v.  Wells,  6  C.  C.  417,  1887;  Eldridge  v.  Francis,  18  Phila.  656,  1885; 

78 


JUDGMENTS  AT  LAW. 


§§42-47]  Waiver  of  Right  to  Appeal  §  43  (9)  (e)-(r) 

(e)  waiver  must  be  in  writing:  Dawson  v.  Condy,  7  S.  &  R.  366,  1821; 

(f)  either  by  agreement  in  case  or  instrument  sued  on:  Haines  v. 
Koons,  5  Kulp  52,  1888;  (g)  agreement  of  counsel  waiving  exceptions 
should  be  filed  of  record  and  included  in  bill  of  exceptions:  Baring  v. 
Shippen,  2  Binn.  154,  1809 ;  (h)  appeal  is  waived  where  parties  stipu- 
late that  award  of  arbitrators  shall  be  final:  Rheem  v.  Allison,  2  S. 
&  R.  113,  1815;  Rogers  v.  Playford,  12  Pa.  181,  1849;  Wightman  v. 
Pettis,  29  Pa.  283, 1857;  McCahan  v.  Reamey,  33  Pa.  535, 1859;  Hughes 
v.  Peaslee,  50  Pa.  257,  1865;  Shisler  v.  Keavy,  75  Pa.  79,  1874;  Man- 
hattan Life  Ins.  Co.  v.  McLaughlin,  80  Pa.  53,  1875 ;  Sargeant  v.  Clark, 
108  Pa.  588,  1885;  Klingensmith  v.  Steel  Co.,  17  Pa.  Super.  210,  1901; 
(i)   or  in  the  case  of  a  reference  not  under  a  statute  where  the 
right  to  appeal  is  not  reserved:  Fuller  v.  Trevor,  8  S.  &  R.  529, 
1822;  Kline  v.  Guthart,  2  P.  &  W.  490,  1831;  Chase  v.  Miller,  41  Pa. 
403,  1862;  Shainline's  Ap.,  2  Walk.  325,  1885;  (j)  or  in  case  stated 
which  makes  no  provision  for  appeal:  Marbaker  v.  Matson,  3  Walk. 
506, 1881 ;  Altoona  v.  Irvin,  3  Penny.  115,  1883 ;  Com.  v.  Callahan,  153 
Pa.  625,  1893;  Morgan  v.  County,  8  Pa.  Super.  96,  1898;  Graham  v. 
County,  16  Pa.  Super.  180,  1901;  (k)  acceptance  of  part  of  decree  in 
divorce  waives  right  to  appeal:  Agnew's  Ap.,  3  Walk.  320,  1883; 
Baily  v.  Baily,  44  Pa.  274,  1863 ;  (1)  or  acceptance  of  amount  of  judg- 
ment or  award:  Smith  v.  Jack,  2  W.  &  S.  101,  1841;  Laughlin  v. 
Peebles,  1  P.  &  W.  114, 1829;  Hall  v.  Lacy,  37  Pa.  366,  1861;  Gibson's 
Ap.,  108  Pa.  244,  1885;  Scran  ton  Bldg.  Asso.  v.  Ranck,  9  Sad.  619, 
1888;    (m)   but  acceptance  of  part  of  claim  awarded  from  fund  of 
sheriff's  sale  by  claimant  of  whole  fund  is  not  waiver  as  to  residue: 
Souder's  Ap.,  57  Pa.  498,  1868;  (n)  enforcement  of  decree  in  party's 
favor  by  proceedings  in  same  court  is  waiver  of  appeal :  Marten 's  Ap., 
13  W.  N.  C.  289,  1883;  (o)  but  appeal  is  not  waived  by  giving  security 
for  stay  of  execution:  Ranck  v.  Becker,  12  S.  &  R.  412, 1825;  (p)  right 
to  ask  for  dismissal  of  appeal  taken  without  authority  is  not  waived 
by  asking  for  continuance,  cross  examining  witnesses  before  commis- 
sioner, or  delay  of  nine  months,  in  case  of  voluntary  submission  under 
Act  April  6,  1870,  P.  L.  948:  Spratt  v.  Raymond,  149  Pa.  258,  1892; 
(q)  waiver  of  appeal  in  capital  case  or  case  where  punishment  is  life 
imprisonment,  is  not  binding  on  defendant :  Smith  v.  Com.,  14  S.  &  R. 
69, 1826 ;  (r)  nor  does  commonwealth  waive  right  to  appeal  from  order 
quashing  indictment  or  arresting  judgment  by  unsuccessful  effort  to 
convict  defendant  on  new  indictment:  Com.  v.  Heikes,  26  Pa.  513, 

79 


GENERAL  APPELLATE  JURISDICTION  AND  PARTIES. 

§43  (9)  (s)-§44         Judgments  at  Law — Equity — Injunctions         [Chap.  4, 

1856;  (s)  waiver  of  appeal  may  itself  be  waived  by  appellee  entering 
plea:  Wetter  v.  Kiley,  95  Pa.  461,  1880. 

(10)  Death  of  Party,     (a)  Eight  to  writ  of  error  does  not  sur- 
vive to  husband  of  married  woman  in  whose  right  action  for  slander 
is  brought,  who  dies  after  arrest  of  judgment :  Stroop  v.  Swarts,  12  S. 
&  R.  76,  1824;  (b)  if  party  dies  before  judgment,  writ  of  error  coram 
vobis  is  properly  allowed  to  administrator:   Devereux  v.   Roper,  1 
Phila.  182,  1851;  (c)  where  person  injured  through  negligence  of  an- 
other dies  after  bringing  suit  and  before  judgment,  personal  represen- 
tatives should  be  substituted  in  lower  court  under  Act  April  15,  1851, 
§18  (P.  L.  864),  1  Purd.  227,  pi.  10;  Birch  v.  Ry.,  165  Pa.  339,  1895; 
Taylor's  Est.,  179  Pa.  254,  1897;  Maher  v.  Traction  Co.,  181  Pa.  391, 
1897;  Haggerty  v.  Boro.,  17  Pa.  Super.  151,  1901;  Black  v.  R.  R.,  18 
Dist.  66, 1906 ;  (d)  and  no  new  action  can  be  brought  by  those  entitled 
under  §19  of  said  act  or  under  Act  April  26,  1855,  §6,  P.  L.  309,  3 
Purd.  3241,  pi.  3:  Taylor's  Est.,  179  Pa.  254,  1897;  McCafferty  v.  R. 
R.,  193  Pa.  339, 1899 ;  (e)  even  though  action  by  deceased  has  been  dis- 
continued: Black  v.  R.  R.,  18  Dist.  66,  1908;  (f)  certiorari  by  com- 
monwealth to  quarter  sessions  will  not  be  quashed  because  of  death  of 
defendant  in  error  before  issuance  of  writ:   Com.  v.  McAllister,  1 
Watts  307,  1833;  (g)  if  plaintiff  in  error  dies  after  issuance  of  writ 
and  before  assignments  of  error  filed,  writ  does  not  abate  and  personal 
representative  may  be  substituted:  Ulshafer  v.  Stewart,  71  Pa.  170, 
1872,  discussing  and  practically  overruling  Boas  v.  Heister,  3  S.  &  R. 
271,  1817.    See  also  §235  below. 

(11)  Superior   Court.     For  jurisdiction   of   Superior   Court,   see 
Chapter  VI,  §110,  below. 

§44.  Orders  and  Decrees  in  Equity.  (A)  Generally.  In 
all  cases  an  appeal  may  be  taken  to  the  Supreme  (and 
Superior)  Court  from  the  final  decrees  of  the  said  courts 
[of  common  pleas  of  the  several  counties  of  this  common- 
wealth] respectively,  in  suits  and  proceedings  in  equity. 
Act  Feb.  14,  1857,  §i,  P.  L.  39,  2,  Purd.  1412,  pi.  8. 

—  (B)  Injunctions  —  Granting  and  Refusing  Special 
Injunction.  The  Act  of  February  14,  1866,  §i,  P.  L.  282, 
2  Purd.  1424,  pi.  53,  §71  (A)  below,  provides  for  appeals 
from  decrees  granting  special  injunctions,  and  the  Act  of 
June  12,  1879,  §i,  P.  L.  177,  2.  Purd.  1425,  pi.  54,  §71  (B), 

80 


EQUITY  DECREES. 


§§  42-47]  When  Reviewable  §  44 

below,  provides  for  appeals  from  orders  refusing  special 
injunctions. 

— (C)  Jurisdiction,  When  Reviewable.  When  a  bill  in 
equity  has  been  filed  in  any  court  of  this  commonwealth, 
if  the  defendant  desires  to  question  the  jurisdiction  of  the 
court,  upon  the  ground  that  the  suit  should  have  been 
brought  at  law,  he  must  do  so  by  demurrer  or  answer, 
explicitly  so  stating,  or  praying  the  court  to  award  an 
issue  or  issues  to  try  questions  of  fact;  otherwise,  the  right 
of  trial  by  jury  shall  be  deemed  to  have  been  waived  by 
both  parties,  and  the  cause  shall  proceed  to  a  final  determ- 
ination by  said  court  and  upon  appeal,  with  the  same  effect 
as  if  upon  a  hearing  before  the  court,  without  a  jury,  upon 
agreement  filed.  Act  June  7,  1907,  §i,  P.  L.  440,  5  Purd. 

5465,  pi.  3- 

If  a  demurrer  or  answer  be  filed,  averring  that  the  suit 
should  have  been  brought  at  law,  that  issue  shall  be  decided 
in  limine,  before  a  hearing  of  the  cause  upon  its  merits. 
If  the  court  shall  decide  that  a  court  of  equity  has  juris- 
diction, the  plaintiff  shall  not  thereafter  be  permitted  to 
question  the  decision  upon  that  ground,  nor  shall  a  decree 
in  defendant's  favor  be  reversed  or  set  aside  because  the 
suit  should  have  been  brought  at  law.  If  the  court  shall 
decide  that  the  suit  should  have  been  brought  at  law,  it 
shall  certify  the  cause  to  the  law  side  of  the  court,  at  the 
costs  of  plaintiff;  and  no  further  proceedings  shall  be  had 
at  the  instance  of  plaintiff  until  these  costs  are  paid,  ex- 
cept that  he  may  appeal  from  the  order  made.  Act  June 
7,  1907,  §2,  P.  L.  440,  5  Purd.  5465,  pi.  3. 

The  plaintiff  shall  not  be  permitted  to  raise  the  question 
upon  his  appeal  after  a  decision  upon  the  merits,  nor  shall 
the  decree  below  be  reversed  or  set  aside  upon  his  appeal, 
because  the  suit  should  have  been  brought  at  law.  Act 
June  7,  1907,  §3,  P.  L.  440,  5  Purd.  5465,  pi.  3. 

(1)  Parties.  For  parties  to  appeal,  see  §43,  above,  notes  (5)  and 
(6). 

81 


GENERAL  APPELLATE  JURISDICTION  AND  PARTIES. 
§44  (2)-(6)  (c)  Equity— Interlocutory   Orders  [Chap.  4, 

(2)  Manner  of  Taking  Appeals.    The  practice  in  taking  appeals  is 
prescribed  by  Act  May  19, 1897,  P.  L.  67,  2  Purd.  1447,  pi.  48-50,  Chap- 
ter VIII,  §130  et  seq.,  below.    The  provision  as  to  practice  in  taking 
appeals,  provided  by  §1  of  the  Act  of  1857  (immediately  following  the 
portion  of  the  section  as  printed  above,   (A),  this  section)   adopted 
the  practice  in  the  courts  of  common  pleas  of  Philadelphia,  under  the 
Act  of  March  17,  1845,  §1  (P.  L.  158),  1  Purd.  1278,  pi.  7,  which  in 
turn  adopted  the  orphans'  court  practice  as  prescribed  by  §59  of  Act 
March  29,  1832,  P.  L.  190,  3  Purd.  3383.    All  these  provisions  were  re- 
pealed by  Act  May  19,  1897,  §22,  P.  L.  72,  2  Purd.  1465,  pi.  90. 

(3)  Formal  Decree  Necessary.    Appeal  cannot  be  taken  from  find- 
ings of  fact  or  conclusions  of  law  by  trial  judge,  but  only  from  formal 
decree  made  in  pursuance  thereof;  and  appellate  court  will  not  pro- 
ceed, even  with  consent  of  parties,  where  no  decree  has  been  entered : 
Fitzpatrick  v.  Engard,  175  Pa.  383,  1896 ;  Watkins  v.  Hughes,  206  Pa. 
526,  1903;  Kenworthy  v.  Trust  Co.,  218  Pa.  286,  1907;  Clymer  v.  Rob- 
erts, 220  Pa.  162,  1908;  Jessup  v.  Boro.,  225  Pa.  583,  1910. 

(4)  Decree  Pro  Forma  Not  Sufficient.    Where  decree  is  entered  by 
court  below  pro  forma  without  consideration,  appellate  court  will  not 
hear  appeal;  to  do  so  would  be  to  assume  original  jurisdiction:  Wil- 
bur's Ap.,  10  W.  N.  C.  101,  1881. 

(5)  Final  Orders  and  Decrees,     (a)  Decree  from  which  appeal  will 
lie  must  be  final  disposition  of  matter  in  controversy:  Royer  v.  Tate, 
1  P.  &  W.  227,  1829;  Stultzfoos's  Ap.,  3  P.  &  W.  265,  1831;  (b)  de- 
cree entered  without  hearing  argument  on  exceptions  to  findings  of 
fact  or  law  is  final:  Green  v.  Paint  Co.,  25  Pa.  Super.  415,  1904;  (c) 
also  decree  appointing  receiver,  where  such  order  is,  in  effect,  an  in- 
junction: Newcastle  R.  R.  Co.'s  Ap.,  3  Walk.  281,  1880:   compare 
Schlecht's  Ap.,  60  Pa.  172,  1869;  (d)  also  decree  confirming  report  of 
master  as  to  scheme  of  distribution  in  partition:  Lincoln  v.  Africa, 
228  Pa.  546,  1910.     For  right  to  appeal  from  decree  granting  or  re- 
fusing a  preliminary  injunction,  see  §71,  below. 

(6)  Interlocutory  Orders,     (a)  "A  decree  is  not  final  within  the 
meaning  of  the  act  conferring  appellate  jurisdiction,  unless,  upon  its 
affirmance,  nothing  remains  but  to  execute  it. ' '    Sterrett,  C.  J.,  in  Na- 
tional Transit  Co.  v.  Pipe  Line  Co.,  180  Pa.  224,  226,  1897.    The  fol- 
lowing orders  and  decrees  have  been  held  interlocutory  and  not  sub- 
ject to  appeal :  (b)  discharging  rule  to  set  aside  service :  Platt  v.  Coal 
Mining  Co.,  191  Pa,  215,  1899;  (c)  dismissing  bill  without  hearing  evi- 

82 


EQUITY  DECREES. 


§§  42-47]  Interlocutory  Orders  §  44  ( 6 )  ( d )  -  ( z ) 

dence  for  defendant  and  without  passing  on  exceptions:  Thomas  v. 
Borden,  222  Pa.  184,  1908;  (d)  refusing  to  dismiss  bill  in  partition: 
Palethorp  v.  Palethorp,  168  Pa.  102,  1895;  (e)  sustaining  demurrer  to 
bill  with  leave  to  amend:  Bishop  v.  Culver,  1  W.  N.  C.  272,  1875 ;(f) 
entering  decree  "demurrer  sustained,"  without  dismissing  bill:  Arm- 
strong v.  Espy,  220  Pa.  48,  1908;  (g)  overruling  demurrer  to  bill  and 
directing  answer :  Arnold  v.  Plow  Co.,  212  Pa.  303,  1905 ;  (h)  overrul- 
ing demurrer  in  divorce  with  leave  to  amend:  Richardson  v.  Richard- 
son, 193  Pa.  279, 1899 ;  (i)  ordering  sale  of  real  estate  of  lunatic :  Gar- 
vey's  Ap.,  13  Pa.  Super.  277,  1900;  (j)  ordering  sale  of  real  estate  of 
dissolved  corporation :  Titusville  Oil  Exchange  Case,  10  Pa.  Super. 
496, 1899;  (k)  removing  committee  of  lunatic  and  appointing  another: 
Black 's  Case,  18  Pa.  434, 1852 ;  (1)  dissolving  partnership  and  appoint- 
ing receiver,  but  without  statement  of  account :  Pantall  v.  Mclntyre, 
197  Pa.  520,  1901;  (m)  requiring  money  to  be  paid  by  or  to  receiver: 
Sykes  v.  Thornton,  152  Pa.  94,  1892;  (n)  refusing  to  suspend  sale  by 
receiver  until  he  files  account:  Hilliard  v.  Supply  Co.,  224  Pa,  132, 
1909;  (o)  restoring  expelled  member  of  corporation  and  ordering  ac- 
counting: Hope  Hose  Co.'s  Ap.,  2  W.  N.  C.  451,  1874;  (p)  appointing 
referee  or  master  to  take  evidence  and  state  account:  Offerle  v. 
Lumber  Co.,  170  Pa.  29,  1895;  (q)  or  to  make  partition  of  real  estate 
held  in  common:  Robinson's  Ap.,  1  W.  N.  C.  239,  1874;  (r)  refusing 
to  open  account  and  ordering  further  accounting:  Lauer  v.  Brewing 
Co.,  180  Pa.  593,  1897;  (s)  allowing  commission  to  perpetuate  testi- 
mony, not  executed  or  returned :  Bowers  v.  Leeds,  7  Pa.  L.  J.  288, 1848; 
(t)  appointing  master  to  conduct  corporate  election:  National  Transit 
Co.  v.  Pipe  Line  Co.,  180  Pa.  224,  1897;  (u)  sustaining  exception  to 
auditor's  report  and  referring  matter  back  to  auditor:  Moore  v.  Steam- 
boat Co.,  196  Pa.  510,  1900;  (v)  overruling  exceptions  to  report  of 
viewers  under  Act  May  16,  1891,  P.  L.  71,  3  Purd.  2759,  pi.  165,  pend- 
ing appeal  by  exceptant:  Penna.  Steel  Co.'s  Ap.,  161  Pa.  571,  1894; 
(w)  overruling  exceptions  to  report  of  viewers  under  Lateral  Railroad 
Act  of  May  5, 1832,  P.  L.  501,  4  Purd.  3918,  pi.  272,  pending  appeal  to 
common  pleas:  Hall's  Ap.,  56  Pa.  238,  1868;  (x)  ordering  decree  to  be 
prepared  but  not  entering  decree  in  accordance  with  finding  of  trial 
judge :  Watkins  v.  Hughes,  206  Pa.  526,  1903 ;  Kenworthy  v.  Trust  Co., 
218  Pa,  286,  1907;  (y)  allowing  costs  out  of  funds  in  controversy:  Fi- 
delity Trust  Co.'s  Ap.,  11  W.  N.  C.  104,  1881;  (z)  making  partial  dis- 
tribution of  fund  raised  by  sheriff's  sale:  Royer  v.  Tate,  1  P.  &  W. 

83 


GENERAL  APPELLATE  JURISDICTION  AND  PARTIES. 

§  45  Equity — Orphans'  Court  [Chap.  4, 

227,  1829;  Stultzfoos's  Ap.,  3  P.  &  W.  265,  1831.  For  right  to  ap- 
peal from  decree  granting  or  refusing  preliminary  injunction,  see  §71, 
below. 

(7)  Jurisdiction  of  Superior  Court.    For  jurisdiction  of  the  Su- 
perior Court,  see  Chapter  VI,  §110,  below. 

(8)  Jurisdiction  Under  Act  of  1907.    Act  of  1907,  (C),  above,  pro- 
viding that  question  of  jurisdiction  shall  be  deemed  to  be  waived  un- 
less questioned  by  demurrer  or  answer,  has  no  application  where,  on 
bill  to  declare  trust  and  for  accounting,  court  finds  on  sufficient  evi- 
dence that  no  trust  in  fact  existed :  Adrian  v.  Fink,  226  Pa.  448,  1910. 

§45.  Decrees  in  Orphans'  Court.  Any  person  aggrieved 
by  a  definitive  sentence  or  decree  of  the  orphans'  court 
may  appeal  from  the  same  to  the  Supreme  (and  Superior) 
Court.  Act  March  29,  1832,  §59,  P.  L.  190,  3  Purd.  3383, 
pi.  68. 

(1)  Parties.    For  parties  to  appeals,  see  §43,  notes  (5)  and  (6). 

(2)  Final  Decrees,    (a)  Only  in  case  of  final  decree  or  sentence  is 
appeal  allowed:  McClay  v.  Hanna,  4  Dal.  160,  1799;  Mitchell's  Ap., 
60  Pa.  502,  1869;  Valentine's  Ap.,  3  W.  N.  C.  471,  1877;  (b)  appeal 
does  not  lie  under  Act  April  10,  1848,  §8,  P.  L.  450,  2  Purd.  1435,  pi. 
6,  from  verdict  in  common  pleas  in  feigned  issue  directed  by  orphans' 
court,  until  latter  court  has  entered  final  decree  thereon :  Green  v. 
Mills,  103  Pa.  22,  1883.    The  following  have  been  held  to  be  final  de- 
crees:  (c)   appointing  guardian:  Senseman's  Ap.,  21  Pa.  331,  1853; 
Pote's  Ap.,  106  Pa.  574,  1884;  (d)  refusing  issue  devisavit  vel  non: 
Schwilke's  Ap.,  100  Pa.  628,  1882;  (e)  revoking  letters  testamentary: 
Schwilke's  Ap.,  100  Pa.  628,  1882;  (f)  confirming  account  of  guardian, 
executor  or  administrator,  whether  partial  or  final:  Richards 's  Case,  6 
S.  &  R.  462,  1821;  Rhoads's  Ap.,  39  Pa.  186,  1861;  Fross's  Ap.,  105 
Pa.  258,  1884;  Galloway's  Est.,  5  Pa.  Super.  272,  1897;  (g)  confirming 
report  of  auditor:  Groff  v.  Trust  Co.,  38  Pa.  Super.  567,  1909;  (h) 
ordering  trustee  to  pay  money  to  cestui  que  trust :  Owen 's  Ap.,  78  Pa. 
511,  1875;  (i)  election  by  court,  where  award  fails  to  elect  between  il- 
legal investments:  Sequin's  Ap.,  103  Pa.  139, 1883;  (j)  dismissing  peti- 
tion of  annuitant  to  have  annuity  charged  on  certain  realty,  where 
there  was  no  inquiry  into  the  merits:  Davis 's  Ap.,  83  Pa.  348,  1877; 
(k)  dismissing  exceptions  to  trustee's  account  and  restating  and  re- 


ORPHANS'  COURT  DECREES. 


§§42-47]  Interlocutory  Orders  §  45  (3)  (a)-(q) 

forming  the  account :  Patterson 's  Ap.,  104  Pa.  369,  1883 ;  (1)  confirm- 
ing inquisition  in  partition:  Christy's  Ap.,  110  Pa.  538,  1885. 

(3)  Interlocutory  Orders.  The  following  orders  and  decrees  have 
been  held  to  be  interlocutory:  (a)  Awarding  issue  devisavit  vel  non; 
McCarter's  Ap.,  78  Pa.  401,  1872;  Schwilke's  Ap.,  100  Pa.  628,  1882; 
(b)  dismissing  motion  to  quash  appeal  from  appraisement  of  collateral 
inheritance  tax:  Belcher's  Est.,  205  Pa.  153,  1903;  (c)  striking  off 
withdrawal  of  widow's  exemption  claim:  Catterson's  Ap.,  100  Pa.  9, 
1892 ;  (d)  ordering  sale  of  real  estate  of  decedent :  Robinson  v.  Glancy, 
69  Pa.  89,  1871;  Snodgrass's  Ap.,  96  Pa.  420,  1880;  Grim's  Est.,  33 
Pa.  Super.  587,  1907;  (e)  directing  executor  to  make  return  to  order 
of  sale:  Walker's  Est.,  25  Pa.  Super.  256,  1904;  (f)  appointing  audi- 
tor to  pass  on  exceptions  to  executor's  account,  restate  and  reform  the 
account  and  make  distribution:  Fair's  Est.,  34  Pa.  Super.  263,  1907; 
(g)  ordering  executor,  administrator  or  trustee  to  file  inventory  or  ac- 
count: Eckfeldt's  Ap.,  13  Pa.  171, 1850;  Palethorp's  Est.,  160  Pa.  316, 
1894;  Starr's  Est.,  3  Pa.  Super.  212,  1897;  Allen's  Est.,  20  Pa.  Super. 
32,  1902;  Tressler's  Est.,  228  Pa.  281,  1910;  (h)  refusing  to  order  ex- 
ecutor, pending  proceedings  directing  filing  account,  to  make  answer  to 
charges  of  having  failed  to  account  for  certain  alleged  trust  funds: 
McClay  v.  Hanna,  4  Dal.  160,  1799;  (i)  dismissing  exceptions  to  audi- 
tor's report  on  preliminary  questions  of  law  and  confirming  same,  or 
postponing  further  consideration  of  exceptions  without  ordering  dis- 
tribution: Mitchell's  Ap.,  60  Pa.  502,  1869;  Turner's  Est.,  183  Pa. 
543,  1898;  (j)  referring  report  back  to  auditor  to  restate  account  and 
make  distribution  in  accordance  with  opinion  of  court:  Beach's  Est., 
30  Pa.  Super.  572,  1906;  (k)  opening  confirmation  of  account  and 
granting  rehearing:  Jones's  Ap.,  99  Pa.  124, 1882;  Long's  Est.,  168  Pa. 
341,  1895;  Fleming's  Est.,  217  Pa.  279,  1907;  (1)  requiring  ward  to 
elect  between  illegal  investment  by  guardian  and  money  invested  with 
interest:  Sequin's  Ap.,  103  Pa.  139,  1883;  (m)  ordering  executor  to 
pay  money  in  accordance  with  prior  decree:  Chew's  Ap.,  3  Gr.  294, 
1860;  Jenning's  Est.,  38  Pa.  Super.  522,  1909;  (n)  requiring  addi- 
tional security  from  administrator:  Revell's  Est.,  12  Dist.  138,  1903; 
(o)  setting  aside  award  of  arbitrators  and  ordering  selection  of  new 
arbitrator  under  clause  in  will:  Turner's  Est.,  183  Pa.  543,  1898;  (p) 
directing  payment  out  of  estate  of  costs  of  proceedings  to  compel 
executor  to  join  in  deed  of  sale:  Schaifer's  Est.,  155  Pa.  250,  1893; 
(q)  allowing  attachment  against  administrator  for  non-payment  of 

85 


GENERAL  APPELLATE  JURISDICTION  AND  PARTIES. 

§  46  Criminal  Cases  [Chap.  4, 

money  while  proceedings  to  revoke  letters  axe  pending :  Mattern  's  Ap., 
3  W.  N.  C.  166,  1876;  (r)  retaining  fund  in  orphans'  court  pending 
attachment  against  it  in  common  pleas:  Valentine's  Ap.,  3  W.  N.  C. 
471,  1877 ;  (s)  awarding  inquest  in  partition :  Gesell  's  Ap.,  84  Pa.  238, 
1877;  Christy's  Ap.,  110  Pa.  538,  1885;  Wistar's  Ap.,  115  Pa.  241, 
1887;  Tressler's  Est.,  228  Pa.  281,  1910;  (t)  setting  aside  inquisition 
for  inadequacy  of  valuation:  Shimer's  Ap.,  16  Leg.  Int.  124,  1859. 

(4)  Manner  of  Taking  Appeals.     The  practice  in  taking  appeals 
is  prescribed  by  Act  May  19, 1897,  P.  L.  67,  2  Purd.  1447,  pi.  51,  Chap- 
ter VIII,  below,  and  the  provision  as  to  practice  in  taking  appeals, 
provided  by  §59  of  Act  of  1832  (immediately  following  the  portion  of 
the  section  as  printed  above)  was  expressly  repealed  by  §22  of  the 
Act  of  May  19, 1897,  P.  L.  72,  Purd.  1465,  pi.  90. 

(5)  Superior  Court.    For  jurisdiction  of  Superior  Court  see  Chap- 
ter VI,  §110. 

(6)  Feigned  Issue.    For  right  of  appeal  in  feigned  issues,  see  §67 
(B). 

§46.  Criminal  Cases —  (A)  Generally.  In  all  cases  of 
felonious  homicide,  and  in  such  other  criminal  cases  as 
may  be  provided  for  by  law,  the  accused,  after  conviction 
and  sentence,  may  remove  the  indictment,  record  and  all 
proceedings  to  the  Supreme  Court  for  review.  Const., 
art.  5,  §  24,  i  Purd.  182,  pi.  126. 

Every  person  indicted  in  any  court  of  quarter  sessions, 
or  in  any  county  court  of  oyer  and  terminer  and  general 
jail  delivery,  may  remove  the  indictment  and  all  proceed- 
ings thereon,  or  a  transcript  thereof,  into  the  Supreme  (or 
Superior)  Court  by  a  writ  of  certiorari,  or  a  writ  of  error, 
as  the  case  may  require.  Act  March  31,  1860,  §33,  P.  L. 
427,  2,  Purd.  1462,  pi.  82. 

—  (B)  Murder  and  Voluntary  Manslaughter — Spe- 
cial Allowance  Unnecessary.  Upon  the  trial  of  any  indict- 
ment for  murder  or  voluntary  manslaughter,  it  shall  and 
may  be  lawful  for  the  defendant  or  defendants  to  except 
to  any  decision  of  the  court  upon  any  point  of  evidence  or 

86 


CRIMINAL  CASES. 


§§  42-47]  Murder — Ingredients — Exceptions,  etc.  §  46 

law,  which  exception  shall  be  noted  by  the  court  and  filed 
of  record  as  in  civil  cases,  and  a  writ  of  error  to  the  Su- 
preme Court  may  be  taken  by  the  defendant  or  defen- 
dants, after  conviction  and  sentence.  Act  March  31,  1860, 
§57,  P.  L.  427,  2  Purd.  1463,  pi.  83. 

In  all  cases  of  murder  and  voluntary  manslaughter,  a 
writ  of  error  from  the  Supreme  Court  to  the  court  trying 
the  same  shall  be  of  right,  and  may  be  sued  out  upon  the 
oath  of  the  defendant  or  defendants,  as  in  civil  cases.  Act 
Feb.  15,  1870,  §i,  P.  L.  15,  2  Purd.  1465,  pi.  88,  and  affirmed 
by  Const.,  art.  5,  §24,  i  Purd.  182,  pi.  126.  (See  (A), 
above.) 

—  (C)  Murder  of  First  Degree — Court  to  Examine  for 
Ingredients.  In  all  cases  of  murder  in  the  first  degree,  re- 
moved into  the  Supreme  Court  under  the  provisions  of  the 
first  section  of  this  act,  or  now  pending  in  the  said  court, 
it  shall  be  the  duty  of  the  judges  thereof  to  review  both  the 
law  and  the  evidence,  and  to  determine  whether  the  ingre- 
dients necessary  to  constitute  murder  in  the  first  degree 
shall  have  been  proved  to  exist;  and  if  not  proved,  then  to 
reverse  the  judgment  as  the  laws  of  this  commonwealth  re- 
quire. Act  Feb.  15,  1870,  §2,  P.  L.  15,  2  Purd.  1465,  pi.  89. 

—  (D)  Exceptions  in  all  Cases — Appeal  by  Common- 
wealth—Special Allocatur.  On  the  trial  of  all  cases  of 
felonious  homicide,  and  all  such  other  criminal  cases  as 
are  exclusively  triable  and  punishable  in  the  courts  of 
over  and  terminer  and  general  jail  delivery,  exception 
to  any  decision  of  the  court  may  be  made  by  the  defen- 
dant, and  a  bill  thereof  shall  be  sealed  in  the  same  manner 
as  is  provided  and  practiced  in  civil  cases;  and  the  accused, 
after  conviction  and  sentence,  may  remove  the  indictment, 

record  and  all  proceedings  to  the  (appellate  courts) 

In  all  other  criminal  cases,  exceptions,  as  aforesaid,  may 

87 


GENERAL  APPELLATE  JURISDICTION  AND  PARTIES. 

§  46  Criminal  Cases — Eight  to  Appeal  [Chap.  4, 

be  taken,  and  in  cases  charging  the  offence  of  nuisance,  or 
forcible  entry  and  detainer,  or  forcible  detainer,  exceptions 
to  any  decision  or  ruling  of  the  court  may  also  be  taken  by 
the  commonwealth,  and  writs  of  error  and  certiorari,  as 
hereinbefore  provided,  may  be  issued  from  the  Supreme 
(or  Superior)  Court  to  all  criminal  courts  [when  specially 
allowed  by  the  Supreme  (or  Superior)  Court  or  any  judge 
thereof].  Act  May  19,  1874,  §i,  P.  L.  219,  2  Purd.  1464, 
pi.  87. 

(E)  Appeal  from  Oyer  and  Terminer  Matter  of  Right. 
An  appeal  to  the  Superior  Court  from  the  oyer  and  ter- 
miner  shall  be  of  right.  Act  June  24,  1895,  §7,  P.  L.  212, 
2  Purd.  1441,  pi.  26. 

(1)  Judgment  and  Sentence  Necessary  Before  Appeal.     Appeals 
may  not  be  taken  until  after  sentence  passed:  March  v.  Com.,  16  S.  & 
R.,  319,  1827;  Com.  v.  Ruth,  104  Pa.  294,  1883;  Com.  v.  Penrod,  1  W. 
N.  C.  65,  1874;  Quay's  Case,  189  Pa.  517,  1899;  Com.  v.  Shivers, 
15  Pa.  Super.  579,  1901. 

(2)  Final  Judgments.    The  following  judgments  have  been  held  to 
be  final:  (a)  quashing  warrant  of  arrest:  Morch  v.  Raubitschek,  159 
Pa,  559,  1894;   (b)  quashing  indictment:  Com.  v.  Haas,  57  Pa.  443, 
1868;  (c)  quashing  indictment  and  directing  defendant  to  give  bail: 
Com.  v.  Gouger,  21  Pa,  Super.  217,  1902 ;  (d)  discharging  relator  from 
custody  of  sheriff  in  habeas  corpus  proceedings :  Boyle  v.  Com.,  107  Pa. 
20,  1884;  Com.  v.  Butler,  19  Pa.  Super.  626,  1902;  (e)  entering  judg- 
ment on  plea  of  nul  tiel  record:  Crutcher  v.  Com.  6  Wh.  340,  1841; 
(f)  judgment  on  certiorari  to  justice  from  common  pleas  for  viola- 
tion of  pure  food  laws :  Com.  v.  Davison,  11  Pa.  Super.  130,  1900. 

(3)  Interlocutory  Judgments.    The  following  judgments  have  been 
held  to  be  interlocutory:   (a)  refusal  to  hear  evidence  on  motion  to 
quash  indictment:  Com.  v.  Roth,  8  Pa.  Super.  220,  1898;   (b)  refusal 
to  order  district  attorney  to  file  bill  of  particulars:  Com.  v.  Shivers, 
15  Pa.  Super.  579,  1901;  (c)  refusal  to  remit  forfeited  recognizance: 
Bross  v.  Com.,  71  Pa.  262,  1872;   (d)  but  appeal  lies  from  interlocu- 
tory  order  where   appellant   claims  to  be   entitled   to   absolute   dis- 
charge on  whole  record :  Com.  v.  Gabor,  209  Pa.  201,  1904. 

88 


CRIMINAL  CASES. 


§§42-47]  Certiorari — Writ  of  Error — Homicide  Cases       §46  (4) -(9) 

(4)  Superior    Court.     For   jurisdiction    of    Superior    Court,    see 
§108  et  seq.,  below. 

(5)  Certiorari.      (a)    Supreme    Court   will    take    jurisdiction    of 
pending  indictment  wherever  it  appears  that  a  fair  trial  cannot  be 
had,  and  will  delegate  one  of  its  own  judges  to  try  case  or  send  it  to 
another  county :  Com.  v.  Balph,  111  Pa.  365,  1886 ;  Com.  v.  Delamater, 
145  Pa.  210,  1891;  Com.  v.  Smith,  185  Pa.  553,  1898;  Com.  v.  Greene, 
185  Pa.  641,  1898;  Quay's  Petition,  189  Pa.  517,  1899;  Com.  v.  Rone- 
mus,  205  Pa.  420,  1903;  (b)  but  it  will  do  so  only  in  clear  cases:  Com. 
v.  Dalamater,  145  Pa.  210,  1891;  Quay's  Petition,  189  Pa.  517,  1899; 
Com.  v.  Fletcher,  208  Pa.  137,  1904;  Com.  v.  Seechrist,  27  Pa.  Super. 
423,  1905;  (c)  the  appeal  may  be  made  returnable  to  another  district 
than  that  in  which  indictment  was  tried:  Hazen  v.  Com.,  23  Pa.  355, 
1854;  (d)  and  appellate  court  will  review  only  matters  appearing  on 
record:  Taylor  v.  Com.,  44  Pa.  131,  1862;  Johnson  v.  Com.,  115  Pa. 
369,  1886;  Hart  v.  Cooper,  129  Pa.  297,  1889;  Com.  v.  Beale,  19  Pa. 
Super.  434,  1902. 

(6)  Writ  of  Error— Where  Issued.    Section  60,  of  Act  March  31, 
1860,  P.  L.  427,  2  Purd.  1464,  pi.  85,  provides  that  writ  of  error  shall 
issue  from  prothonotary  of  proper  district,  but  that  application  and 
hearing  may  be  made  and  had  in  any  other  district  in  which  court  may 
be  sitting.    See  also  Hazen  v.  Com.,  23  Pa.  355,  1854. 

(7)  Jurisdiction  Prior  to  Act  of  1860.     (a)  Writs  of  error  were 
not  extended  to  criminal  cases  by  statute  of  Westminster  II,  13  Edw. 
1,  Chap.  31   (§161,  below),  and  jurisdiction  of  appellate  court  was 
first  given  by  Act  May  22,  1722,  §9,  1  Sm.  L.  138  (§43,  above),  2 
Purd.  1428:  Middleton  v.  Com.,  2  Watts  285,  1834;  Sampson  v.  Com., 
5  W.  &  S.  385,  1843;  Hopkins  v.  Com.  50  Pa.  9,  1865;  (b)  exceptions 
and  assignments  of  error  in  cases  of  murder  and  manslaughter  were  al- 
lowed by  Act  Nov.  6,  1856,  §7,  P.  L.  795,  and  were  limited  by  that  act, 
as  in  Act  of  1860,  to  review  of  decisions  on  points  of  evidence  or  law 
when  excepted  to  by  defendant  and  noted  and  filed  of  record  by  court : 
Fife  v.  Com.,  29  Pa.  429,  1857. 

(8)  Exceptions  Required.    See  §151,  below. 

(9)  Removal  of  Homicide  Cases  Matter  of  Right,     (a)  Removal 
of  homicide  cases  is  matter  of  right:  Com.  v.  Buccieri,  153  Pa.  570, 
1893;   (b)   subject  nevertheless  to  reasonable  regulations  as  to  pro- 
cedure; and  Act  of  1870  is  not  violated  by  a  limitation  of  the  time 
for  taking  appeal:  Sayres  v.  Com.,  88  Pa.  291,  1879  (see  also  §230) ; 

89 


GENERAL  APPELLATE  JURISDICTION  AND  PARTIES. 
§46  (9)  (c)-(12)  (a)          Criminal  Cases — Homicide — Murder         [Chap.  4, 

(c)  appeal  from  conviction  of  murder,  to  act  as  supersedeas,  must  be 
taken  within  three  weeks  from  sentence,  as  provided  by  Act  May 
19,  1897,  P.  L.  67,  §4,  2  Purd.  1433,  pi.  3 :  Com.  v.  Hill,  185  Pa.  385, 
1898 ;  (d)  it  is  the  practice  on  appeals  in  capital  cases  for  prothonotary 
of  Supreme  Court  to  send  to  the  Governor  a  certificate  that  an  appeal 
has  been  taken.  After  the  determination  of  the  appeal  he  sends  a  cer- 
tificate of  the  judgment  of  the  Supreme  Court. 

(10)  Murder  of  First  Degree — Review  of  Evidence.     On  appeal 
from  conviction  of  murder  of  the  first  degree,  the  Supreme  Court 
will  not  review  facts  on  question  of  guilt  or  innocence,  but  will  only 
determine  whether  competent  evidence  was  introduced,  which,  if  be- 
lieved by  jury,  would  furnish  ingredients  of  that  grade  of  murder: 
Grant  v.  Com.,  71  Pa.  495,  1872;  Staup  v.  Com.,  74  Pa.  458,  1873;  Mc- 
Cue  v.Com.,  78  Pa.  185, 1875;  Meyers  v.Com.,  83  Pa.  131, 1876;  Com.  v. 
Morriston,  193  Pa.  613, 1899 ;  Com.  v.  Bubnis,  197  Pa.  542,  1901 ;  Com. 
v.  Garrito,  222  Pa.  304, 1908;  see  §230. 

(11)  Special  Allowance,    (a)  Under  Act  of  1874,  special  allowance 
was  necessary  in  all  cases  except  where  case  was  triable  exclusively  in 
oyer  and  terminer:  Com.  v.  Capp,  48  Pa.  53,  1864;  Hutchison  v.  Com., 
82  Pa,  472,  1876;  Com.  v.  Wallace,  114  Pa.  405,  1886;  (b)  the  Act  of 
1874  was  repealed  by  §22  of  Act  of  May  19,  1897,  P.  L.  67,  2  Purd. 
1465,  pi.  90,  in  so  far  as  it  required  the  allowance  of  an  appeal  by  the 
commonwealth  in  cases  of  nuisance,  forcible  entry  and  detainer,  or 
forcible  detainer;  (c)  and  for  error  in  quashing  indictment,  arresting 
judgment  after  verdict  of  guilty,  and  like  error  appearing  on  record, 
commonwealth  may  take  out  writ  of  error  or  certiorari  in  any  case 
without  special  allowance:  Com.  v.  Heikes,  26  Pa.  513,  1856;  Com.  v. 
Capp,  48  Pa.  53, 1868;  Com.  v.  Haas,  57  Pa.  443, 1868;  Com.  v.  Wallace. 
114  Pa.  405,  1886;  Com.  v.  Sober,  15  Pa.  Super.  520,  1901;  Com.  v. 
Hazlett,  16  Pa.  Super.  534,  1901;  section  7,  clause  (a)  of  Act  of  June 
24,  1895,  P.  L.  212,  which  required  a  special  allowance  of  appeal  from 
the  quarter  sessions  court  by  one  of  the  Superior  Court  judges,  was 
amended  by  §22  of  the  Act  of  May  19,  1897,  P.  L.  67,  2  Purd.  1465,  pi. 
90,  and  an  appeal  may  now  be  taken  by  defendant  in  all  criminal 
cases  without  special  allowance. 

(12)  Appeals  by  Commonwealth,     (a)  Though  erroneous  decision 
may  cause  acquittal  of  defendant,  commonwealth  cannot  except  nor 
have  decision  reviewed  except  in  cases  of  nuisance,  forcible  entry  and 
detainer,  and  forcible  detainer:  Com.  v.  Wallace,  7  Pa.  Super.  405, 

90 


CRIMINAL  CASES. 


§§  42-47]         Appeal  by  Commonwealth — Prior  Appeal         §  46  ( 11 )  ( b )  -§  47 

1898;  Com.  v.  Wallace,  114  Pa.  405,  1886;  Com.  v.  Steimling,  156  Pa. 
400,  1893;  Com.  v.  Coble,  9  Pa.  Super.  215,  1899;  Com.  v.  Stillwagon, 
13  Pa.  Super.  547,  1900;  (b)  consent  of  Attorney  General  to  appeal  is 
not  necessary,  but  appeal  may  be  taken  by  district  attorney  of  proper 
county:  Com.  v.  Capp,  48  Pa.  53,  1864;  Com.  v.  Wallace,  114  Pa.  405, 
1886;  Com.  v.  Cassell,  1  Pa.  Super.  476,  1896;  (c)  but  for  error  in 
quashing  indictment  or  arresting  judgment  after  verdict  of  guilty, 
commonwealth  may  remove  record  for  review  without  special  allow- 
ance: see  note  (11)  (c),  this  section;  (d)  in  cases  above  specified 
(  (a),  this  note),  right  of  appeal  is  extended  to  commonwealth  to  take 
exception  and  to  have  bill  sealed  as  in  civil  cases:  Com.  v.  Bradney, 
126  Pa.  199,  1889;  Com.  v.  McNaughter,  131  Pa.  55,  1890;  Com.  v. 
Cassell,  1  Pa.  Super.  476,  1896;  Com.  v.  Wallace,  7  Pa.  Super  405, 
1898;  (e)  where  prisoner  has  been  acquitted,  lower  court  has  no  power 
to  grant  new  trial :  Com.  v.  Wallace,  7  Pa.  Super.  405,  1898. 

§47.  Appeal  not  Precluded  by  Prior  Appeal  of  Adverse 
Party.  No  act  of  the  Legislature  of  this  commonwealth 
heretofore  passed  shall  be  so  construed  as  to  prevent 
either  party  in  a  cause  from  obtaining  his,  her  or  their 
writ  of  error,  and  a  decision  of  the  Supreme  Court 
thereon,  as  well  after  a  decision  by  the  said  court  on  a 
writ  of  error  previously  obtained  by  the  adverse  party  in 
such  cause,  as  if  both  parties  had  obtained  their  respective 
writs  returnable  to  the  same  terms  of  the  Supreme  Court. 
Act  March  2.2.,  1850,  §2,  P.  L.  230,  2  Purd.  1435,  pi.  8. 

(1)  Appeals  by  Both  Parties,  (a)  Act  1850,  above,  does  not  apply 
to  cases  finally  adjudicated  before  passage  of  act:  McCabe  v.  Emer- 
son, 18  Pa.  Ill,  1851;  (b)  judgment  or  writ  of  error  does  not  bar 
subsequent  writ  of  error  taken  by  opposite  party  in  which  different 
errors  are  assigned :  Ormsby  v.  Ihmsen,  34  Pa.  462,  1859 ;  Gates  v.  R. 
R.,  154  Pa.  567,  1893. 


SPECIAL  JURISDICTION  AND  PARTIES. 


Synopsis  of  Chapter  [Chap.  5, 


CHAPTER  V. 

APPELLATE  JURISDICTION  AND  PARTIES — SPECIAL  CASES. 

§48.    Right  of  Review  in  Statutory  Proceedings. 

(A)  On  the  Merits. 

(B)  Certiorari  to  Test  Regularity. 

(C)  Form  of  Writ — All  Proceedings  to  be  Called  Appeals. 

(D)  Practice  on  Appeal. 

(E)  Laws  and  Powers  Conferred  to  be  Uniform. 

§49.    Account. 

(A)  Preliminary  Question  of  Liability  in  Equity. 

(B)  Review  of  Accounts  in  Orphans'  Court. 

(C)  Tenants  in  Common  of  Mines. 

§50.    Affidavits  of  Defense,  Judgment  for  Insufficient. 

(A)  Writ  by  Plaintiff. 

(B)  Dismissing   Writ   or   Entering    Judgment   in   Appellate 

Court — Right  to  Second  Writ  Preserved. 
§51.    Arbitration — Voluntary. 

(A)  Either  Party  May  Appeal. 

(B)  Assignee  for  Benefit  of  Creditors. 

§52.    Armories — Condemnation  of  Unopened  Public  Highway. 
§53.     Attorneys-at-Law — Rehearing  by  Supreme  Court. 
§54.    Auditors'  Settlements — Municipalities,  etc. 

(A)  Judgment  on  Issue — Joint  Appeal  by  Taxpayers. 

(B)  Appeal  on  Exceptions  to  Rulings. 

(C)  Poor  Districts — Appeal  by  Accountant,  Board  of  Direc- 

tors or  Taxpayer. 

§55.    Banks — Fraudulent  Insolvency — Proceeding  by  Assignee. 
§56.    Boroughs. 

(A)  Decree  Incorporating — Joint  Appeal. 

(B)  Damages — Public  Buildings. 

(C)  Library  Purposes. 

(D)  Electric  Light  Plant. 

(E)  Garbage  Furnaces  and  Sewage  Disposal  Plants. 

(F)  Public  Parks  and  Playgrounds. 

92 


SPECIAL  JURISDICTION  AND  PARTIES. 


§§48-101]  Synopsis  of  Chapter 


(G)       Change  of  Grade  or  Lines  of  Streets. 

(H)       Connecting  with  Sewer  of  Adjoining  Municipality. 

(I)    Benefits  and  Damages — Streets,  Bridges  and  Sewers. 

(J)        Enclosing    Water-course. 

(K)       Altering  Water-course. 

(L)  Liens  and  Procedure  Thereon. 

§57.     Collateral  Inheritance  Tax — Appraisement. 

§58.    Common  Schools. 

(A)  Damages — Certain   Public   Burial   Places    for   Common 

School  Purposes. 

(B)  Library  Purposes. 

(C)  School  Purposes — Cities  of  the  First  Class. 
§59.    Corporations. 

(A)  Land  Damages. 

(B)  Forfeiture  of  Franchises. 

(C)  Abandonment  of  Easement — Quieting  Title. 

§60.    Counties. 

(A)  Damages — Public  Buildings. 

(B)  Constructing  Highways,  Bridges  and  Tunnels. 

§61.    Divorce. 

§62.    Domestic  Attachment. 

§63.    Elections. 

(A)  Nomination  or  Election  Expenses — Audit  of  Account. 

(B)  Contest — Judiciary — Constitutional   Question   Involved. 

(C)  Parties — Filing  and  Hearing  Appeals. 

(D)  Decision  and  Certifying  Same. 

(E)  Receiver  for  Vacant   Office — Account   of — Philadelphia 

County. 
§64.    Escheat. 

(A)  Feigned  Issue — Writ  on  Exceptions  to  Rulings. 

(B)  Final  Adjudication — Appeal  by  Commonwealth  or  Any 

Person. 

(C)  Traverse  by  Party  Without  Notice. 
§65.    Estates  Tail — Barring. 

§66.    Executions. 

(A)  Sheriff's  Interpleader. 

(B)  Distribution  Without  Intervention  of  Jury. 


SPECIAL  JURISDICTION  AND  PARTIES. 


Synopsis  of  Chapter  [Chap.  5, 


(C)  Refusal  of  Issue  on  Distribution. 

(D)  Judgment  on  Issue. 
§67.    Feigned  Issue. 

(A)  Appeal  from  Final  Judgment  or  Decree  Preserved. 

(B)  Directed  by  Orphans'  Court. 

§68.  Foreign  Attachment — Judgment  for  One  of  Several  Defen- 
dants— Attachment  Against  Others  Dissolved — Review  by 
Plaintiff. 

§69.     Gas  and  Water  Companies — Impurity  or  Deficiency. 

§70.     Ground  Rents — Proceedings  to  Extinguish. 

§71.     Injunction — Special  or  Preliminary. 

(A)  Granting — Hearing. 

(B)  Refusing — Hearing — Practice  on  Appeal. 

§72.    Insolvency — Final  Order — Order  Resulting  in  Imprisonment. 

§73.    Insurance  Companies — Insolvency — Fraud. 

§74.    Judgments — Opening,    Vacating   or   Striking   Off   or   Refusing 

Same. 

§75.    Labor  Claims — Joint  Appeals — Hearing. 
§76.    Lunatics  or  Habitual  Drunkards. 

(A)  Superseding  Commission. 

(B)  Maintenance,  Etc.,  of  Lunatics. 

§77.    Mandamus — Practice — Supersedeas — Jurisdiction — Review. 
§78.    Mechanics'  Liens. 
§79.    Municipal  Liens. 
§80.     Municipalities. 

(A)  Benefits  and  Damages — Streets,  Bridges  and  Sewers. 

(B)  Damages  for  Taking  Bridges  Connecting  Parts  of  Mu- 

nicipalities. 

(C)  Damages    for    Property    Injured    by    Construction    and 

Maintenance  of  Bridges. 

(D)  Damages  for  Public  Parks. 

(E)  Damages  for  Public  Grounds  and  Buildings. 

(F)  Benefits  and  Damages — Water-courses. 

(G)  License  Fees  for  Telegraph,  Telephone,  Light  or  Power 

Companies — R  easonableness. 

(H)  Cities  of  First  Class — Benefits  and  Damages — Improv- 
ing Plotted  Streets. 

94 


SPECIAL  JURISDICTION  AND  PARTIES. 


§§48-101]  Synopsis  of  Chapter 


(I)    Cities  of  First  Class — Damages  for  School  Purposes. 

(J)  Cities  of  Second  Class — Regulations  of  Councils  as  to 
Use  of  Streets. 

(K)  Cities  of  Third  Class — Benefits  and  Damages  for 
Streets,  Sewers,  Water-courses  and  Public  Works. 

(L)  Cities  of  Third  Class — Benefits  and  Damages  for  En- 
closing Water-ways. 

§81.    Natural  Gas  Companies. 

(A)  Land  Damages  for  Easement. 

(B)  Pipes,  Character  of  and  Manner  of  Laying. 
§82.    Non-Suit—Refusal  to  Set  Aside. 

§83.    Orphans'  Court  Sales — Refusal  of  Feigned  Issue. 
§84.    Partition. 

(A)  Judgment  Quod  Partitio  Fiat. 

(B)  Mineral  Lands — Luzerne  County. 

§85.    Paupers — Issue  on  Appeal  from  Order  of  Removal. 
§86.    Pipe  Line  Companies. 

(A)  Land  Damages. 

(B)  Forfeiture  and  Escheat  by  Quo  Warranto. 

§87.     Plank  Roads — Equity  Proceedings. 
§88.    Points  Reserved. 

(A)  Philadelphia  District  Court. 

(B)  Common  Pleas  Generally. 

(C)  Judgment  Non  Obstante  Veredicto. 

(D)  Judgment  on  Whole  Record  where  Jury  have  Disagreed. 
§89.     Quo  Warranto. 

§90.    Railroads — Land  Damages. 
§91.    Real  Estate. 

(A)  Price  Act — Proceedings. 

(B)  Quieting  Title — Refusal  of  Rule  or  Issue — Judgment. 

§92.     Recognizances,  Forfeited. 
§93.     Reference  Under  Act  of  1874. 
§94.     Tax  Assessments. 

§95.     Telegraph   Companies — Forfeiture  and   Escheat  by  Quo   War- 
ranto. 

95 


SPECIAL  JURISDICTION  AND  PARTIES. 


§  48  Synopsis  of  Chapter — Review  on  Merits  [Chap.  5, 

§96.     Toll  Bridges — Purchase  or  Condemnation. 

(A)  By  Municipalities. 

(B)  By  Counties. 
§97.    Townships— First  Class. 

(A)  Land  Damages — Highways. 

(B)  Damages  and  Expenses — Connecting  with  Sewer  of  any 

Adjoining  Municipality. 

(C)  Land  Damages — Public  Parks  and  Playgrounds. 
§98    Trial  by  Court  Without  Jury. 

(A)  Review  of  Judgment. 

(B)  Review  on  Exceptions. 

(C)  Hearing. 
§99.     Trustees. 
§100.    Turnpikes. 

(A)  Opening — Land  Damages — Writ  of  Error. 

(B)  Condemnation — Roads  Lying  Wholly  or  in  Part  Within 

County — Certiorari. 

(C)  Writ  of  Error. 

(D)  Line  Dividing  two  Counties — Certiorari. 

(E)  Appeal. 

§101.    Weakminded  Persons — Appointment  of  Guardian. 

§48.  Right  of  Review  in  Statutory  Proceedings —  (A) 
On  the  Merits.  In  statutory  proceedings,  the  general  rule 
is  that  the  right  of  review  on  the  merits  must  be  expressly 
given,  and  the  statutes  giving  such  right  are  collected  be- 
low in  this  chapter. 

This  rule  is  modified  by  the  following  provision  of  Art. 
16,  §8,  of  the  Constitution: 

"The  general  assembly  is  hereby  prohibited  from  de- 
priving any  person  of  an  appeal  [to  the  court  of  common 
pleas]  from  any  preliminary  assessment  of  damages  [for 
private  property  taken,  injured  or  destroyed  by  the  con- 
struction or  enlargement  of  the  works,  highways  or  im- 
provements of  municipal  and  other  corporations  and  indi- 
viduals invested  with  the  privilege  of  taking  private  prop- 
erty for  public  use]  against  any  such  corporations  or  indi- 

96 


EMINENT  DOMAIN  CASES. 


§§48-101]  Constitutional  Provision — Act  of  1874  §48 

viduals  made  by  viewers  or  otherwise;  and  the  amount  of 
such  damages  in  all  cases  of  appeal  shall,  on  the  demand 
of  either  party,  be  determined  by  a  jury  according  to  the 
course  of  the  common  law." 

And  by  the  Act  of  June  13,  1874  §i,  P.  L.  283,  2  Purd. 
1401,  pi.  n,  which  reads  as  follows: 

"In  all  cases  of  damages  assessed  against  any  municipal 
or  other  corporation,  or  individual  or  individuals,  invested 
with  the  privilege  of  taking  private  property  for  public  use, 
for  property  taken,  injured  or  destroyed  by  the  construc- 
tion or  enlargement  of  their  works,  highways  or  improve- 
ments, whether  such  assessment  shall  have  been  made  by 
viewers  or  otherwise  than  upon  a  trial  in  court,  and  an 
appeal  is  not  provided  for  or  regulated  by  existing  laws, 
an  appeal  may  be  taken  by  either  party  to  the  court  of 
common  pleas  of  the  proper  county." 

This  section  of  the  Constitution,  and  the  Act  of  1874, 
above,  give  the  right  to  appeal  from  assessment  of  land 
damages  to  the  court  of  common  pleas,  and  the  right  to  a 
trial  by  jury  according  to  the  course  of  the  common  law, 
from  which  a  writ  of  error  (now  appeal)  lies,  without  re- 
gard to  whether  or  not  the  right  of  appeal  is  given  by  the 
particular  statute  under  which  the  damages  were  assessed. 
See  note  (3)  this  section,  and  §182,  note  (2),  below. 

In  construing  the  acts  collected  in  this  chapter,  and 
others  hereafter  enacted,  giving  the  right  of  appeal,  where, 
from  the  language  used,  it  is  not  clear  whether  the  appeal 
provided  for  is  to  the  common  pleas  or  to  the  appellate 
courts,  a  construction  in  favor  of  the  latter  would  seem  to 
be  preferred,  as  the  right  to  appeal  to  the  common  pleas 
already  exists  under  the  constitution  and  the  Act  of  1874, 
and  any  other  construction  would  not  give  effect  to  all  the 
provisions  of  the  statute.  In  Rodgers  v.  Boro.,  2  Pa.  C.  C. 

97 


SPECIAL  JURISDICTION  AND  PARTIES. 


§  48  Appeal — Certiorari — Form  of  Writ  [Chap.  5, 

523,  1884,  Meyers,  J.,  held  that  in  the  Act  of  May  24,  1878, 
§i,  P.  L.  129,  i  Purd.  523,  pi.  27,  §56  (G)  below,  provid- 
ing that  "either  party  shall  be  entitled  to  an  appeal  as  in 
other  cases,"  the  words  "as  in  other  cases"  must  necessar- 
ily apply  to  appeals  to  the  common  pleas  only,  as  these 
words  can  have  no  application  to  appeals  to  appellate 
courts.  This  view  is  adopted  in  I  Trickett  on  Boroughs, 
§283;  but  Millvale  Boro.  v.  Poxon,  123  Pa.  497,  1889,  seems 
to  decide  expressly  to  the  contrary,  and  it  is  quoted  and 
relied  upon  to  that  effect  by  Wickham,  P.  J.,  in  Brown  v. 
Boro.,  12  Pa.  C.  C.  313,  1893. 

— (B)  Certiorari  to  Test  Regularity.  Certiorari  will 
lie  in  all  cases  to  test  the  regularity  of  the  proceedings, 
except  where  the  judgment  in  the  court  below  is  made 
conclusive  by  the  statute,  or  in  cases  stated  or  references 
made  by  the  parties  not  under  any  statute,  without  reserv- 
ing the  right  of  review.  See  note  (2),  below,  this  section. 

—  (C)  Form  of  Writ — All  Proceedings  to  be  Called  Ap- 
peals. While  a  writ  of  error  is  the  proper  remedy  in  pro- 
ceedings according  to  the  course  of  the  common  law,  and 
no  appeal,  strictly  so  called,  lies,  this  distinction  is  unim- 
portant in  taking  the  writ,  as  under  the  Act  of  May  9, 
1889,  §i,  P.  L.  158,  (§182  below)  all  appellate  proceedings 
heretofore  taken  by  writ  of  error,  appeal  or  certiorari, 
shall  hereafter  be  taken  in  a  proceeding  to  be  called  an  ap- 
peal. The  distinctions  between  the  modes  of  review  under 
the  old  practice  become  important  in  preparing  the  case 
for  argument,  because  the  only  effect  of  the  Act  of  1889  is 
to  call  the  different  proceedings  by  the  same  name,  leav- 
ing the  court,  in  reviewing  the  case,  to  be  governed  by  the 
same  principles  as  controlled  its  decisions  prior  to  the  pas- 
sage of  that  act.  See  Chap.  XI,  §  182. 

— (D)  Practice  on  Appeal.  The  Act  of  May  9,  1897,  P.  L. 

98 


STATUTORY  PROCEEDINGS. 


§§48-101]  No  Appeal — Unless  given  by  Statute  §48 

67,  2  Purd.  1447,  pi.  51,  et  seq.,  §§163-178,  below,  regulat- 
ing the  practice,  bail,  supersedeas  and  costs  on  appeals,  is, 
by  §22  of  that  act,  2  Purd.  1467,  pi.  91,  made  "a  complete 
and  exclusive  system  in  itself  on  all  appeals  to  such  appel- 
late courts.  But  the  power  of  said  appellate  courts,  except 
in  regard  to  the  matters  herein  expressly  provided  for,  shall 
remain  unaffected  hereby." 

—  (E)Laws  and  Powers  Conferred  to  be  Uniform.  All 
laws  relating  to  courts  shall  be  general  and  of  uniform 
operation,  and  the  organization,  jurisdiction  and  powers  of 
all  courts  of  the  same  class  or  grade,  so  far  as  regulated  by 
law,  and  the  force  and  effect  of  the  process  and  judgment 
of  such  courts,  shall  be  uniform.  Const.,  art.  5,  §26,  I  Purd. 
183,  pi.  128. 

(1)  Review  on  Merits  in  Satutory  Proceedings.  Where  the  pro- 
ceeding is  contrary  to  the  course  of  the  common  law,  no  appeal  or 
writ  of  error  will  be  allowed  unless  expressly  given,  and  if  so  given 
statutory  provision  as  to  review  must  be  strictly  followed.  No  appeals 
are  given  in  following  cases:  (a)  Adoption  proceedings:  Lewis's  Ap., 
6  Sad.  79,  1887;  (b)  arbitration,  compulsory,  under  Act  March  20, 
1810,  5  Sm.  L.,  131:  LeBarron  v.  Harriott,  2  P.  &  W.  154,  1830;  Sulli- 
van v.  Weaver,  9  Pa.  223,  1848;  (c)  auditors'  settlements  of  county  or 
township  accounts,  under  Acts  April  15,  1834,  §56,  P.  L.  547,  1  Purd. 
863,  pi.  19,  and  March  25,  1864,  §14,  P.  L.  537:  Gangwere's  Ap.,  61 
Pa.  342,  1869 ;  Gifford  v.  County,  142  Pa.  408,  1891 ;  Thomas  v.  Twp., 
148  Pa.  116, 1892;  Lower  Merion  Twp.  v.  Cline,  211  Pa.  559,  1905;  (d) 
boroughs,  annexation  of  adjacent  territory  under  Act  June  11,  1879, 
P.  L.  150,  1  Purd.  483,  pi.  28:  Camp  Hill  Boro.,  142  Pa.  511,  1891;  (e) 
or  under  Act  April  17,  1876,  P.  L.  38,  1  Purd.  653,  pi.  70;  Elk  Twp. 
School  District,  146  Pa.  1, 1892;  (f)  boroughs,  incorporation  under  Act 
May  9,  1889,  §1,  P.  L.  184,  1  Purd.  482,  pi.  18:  Swissvale  Boro.,  9  Pa. 
Super.  212,  1899;  Swoyerville  Boro.,  12  Pa.  Super.  118,  1899;  Rouse- 
ville  Boro.,  12  Pa.  Super.  126,  1899;  Old  Forge  Boro.,  12  Pa.  Super. 
359,  1900;  Edgeworth  Boro.,  25  Pa.  Super.  554,  1904;  Wernersville 
Boro.,  38  Pa.  Super.  462,  1909;  (g)  burial  ground  removals  under  Act 
May  12,  1887,  P.  L.  96,  1  Purd.  561,  pi.  13:  Zion  Congregation's  Ap., 
1  Mona.  635,  1889;  (i)  common  schools,  damages  for  taking  public 

99 


SPECIAL  JURISDICTION  AND  PARTIES. 

§48,  (1)  (j)-(b2)       No  Appeal— Unless  given  by  Statute  [Chap.  5, 

property  of  directors  of  the  poor  under  Act  April  4,  1889;  P.  L.  25,  1 
Purd.  694,  pi.  316:  South  Lebanon  Twp.  School  Dist.,  22  Pa  Super. 
330, 1903;  (j)  desertion  proceedings  under  Act  Mar.  31, 1812,  5  Sm.  L. 
393,  1  Purd.  1217,  pi.  3:  Com.  v.  Nathans,  2  Pa.  138,  1845;  (k)  nor  un- 
der Act  June  13, 1836,  P.  L.  539:  Com.  v.  Nathans,  5  Pa.  124, 1847;  (1) 
or  under  Act  April  13, 1867,  P.  L.  78, 1  Purd.  1219,  pi.  8 :  Com.  v.  Jones, 
90  Pa.  431,  1879;  Barnes's  Ap.,  2  Penny.  506,  1882;  Com.  v.  James, 
142  Pa.  32, 1891;  Com.  v.  Tragic,  4  Pa,  Super.  159,  1897;  (m)  divorce, 
appeal  but  not  writ  of  error  under  Act  April  2,  1804,  P.  L.  375 :  Miller 
v.  Miller,  3  Bin.  30,  1810;  (see  §61,  below) ;  (n)  appeal  also  given  under 
Act  March  13, 1815,  §13,  6  Sm.  L.  286 :  Andrews  v.  Andrews,  5  S.  &  R. 
374, 1819;  (o)  and  under  Act  Feb.  26, 1817,  6  Sm.  L.  405, 1  Purd.  1247, 
pi.  34:  Robbarts  v.  Robbarts,  9  S.  &  R.  191,  1823;  (p)  and  under  Act 
June  11,  1891,  §1,  P.  L.  295,  1  Purd.  1245,  pi.  26;  (§61,  below) ;  (q) 
domestic  attachment  under  Act  Dec.  4,  1807,  4  Sm.  L.  479:  Lewis  v. 
Wallick,  3  S.  &  R.  410,  1817;  (r)  but  appeal  given  under  Act  June 
13,  1836,  §43,  P.  L.  615,  1  Purd.  1269,  pi.  16;  (§62,  below) ;  (s)  eject- 
ment proceedings,  reference  to  judge  as  arbitrator:  Gwynn  v.  O'Hern, 
72  Pa.  29,  1872;  (t)  ejectment,  rule  to  bring,  under  Act  June  24,  1885, 
§1,  P.  L.  152,  2  Purd.  1303,  pi.  31 :  Davenport  v.  Jones,  126  Pa.  271, 
1889;  (n)  and  under  Act  March  8,  1889,  P.  L.  10,  2  Purd.  1305,  pi. 
36,  as  amended  by  Act  May  25,  1893,  P.  L.  131 :  Gabler  v.  Black,  210 
Pa.  541,  1904;  (v)  election  contests,  under  Acts  May  19,  1874,  P.  L. 
406,  June  10,  1893,  P.  L.  419,  2  Purd.  1348,  pi.  140,  and  July  9,  1897, 
P.  L.  223,  2  Purd.  1341,  pi.  121:  Robb's  Nomination,  188  Pa.  212, 1898; 
Lyon  v.  Dunn,  196  Pa.  90,  1900;  (w)  but  appeal  given  by  Acts  June 
12, 1878,  P.  L.  204,  2  Purd.  1387,  pi.  352,  and  March  5,  1906,  §10,  P.  L. 
78,  5  Purd.  5445,  pi.  74:  (see  §63,  (A)  and  (B),  below) ;  (x)  and  Elec- 
tion Acts  of  July  2,  1839,  P.  L.  554,  and  July  2,  1839,  P.  L.  566 :  Car- 
penter's  Case,  14  Pa.  486,  1850;  Wellington  v.  Kneass,  15  Pa.  315, 
1851;  Election  Cases,  65  Pa.  20,  1870;  (y)  election  contests  under  Act 
May  19,  1874,  P.  L.  211,  2  Purd.  1387,  pi.  355:  McNeilPs  Election, 
111  Pa.  235,  1886;  (z)  execution,  stay  of,  owing  to  military  service, 
by  appeal  but  not  writ  of  error  under  Act  April  18,  1861,  P.  L.  409 : 
Breitenbach  v.  Bush,  44  Pa.  313,  1863;  (a2)  feigned  issue  to  try  right 
of  assignee  for  benefit  of  creditors,  by  appeal  but  not  writ  of  error 
under  Act  June  14,  1836,  §15,  P.  L.  628  (see  §67,  below) :  Baker  v. 
Williamson,  2  Pa.  116,  1846 ;  Ingraham  v.  Caricabura,  5  Pa.  177,  1847 ; 
Johns  v.  Erb,  5  Pa.  232,  1847;  (b2)  fines  under  Act  April  26,  1855, 

ICO 


STATUTORY  PROCEEDINGS. 


§§48-101]  No  Appeal — Unless  given  by  Statute     §  48  (1)  (b2)-(u2) 

P.  L.  321;  Com.  v.  Gillespie,  146  Pa.  546,  1892;  (c2)  judgment  on 
plea  of  nul  tiel  record:  Todd  v.  Patterson,  17  S.  &  R.,  345,  1828;  (d2) 
life  estates,  appointment  of  sequestrators :  Lancaster  County  Bank 
v.  Stauffer,  10  Pa.  398,  1849;  Lefever  v.  Witmer,  10  Pa.  505,  1849; 
(e2)  liquor  license  application  under  Act  April  12,  1875,  P.  L.  42,  2 
Purd.  2328,  pi.  59:  Toole's  Ap.,  90  Pa.  376,  1879;  (f2)  lunacy,  finding 
of,  by  inquest :  Gest  's  Case,  9  S.  &  R.  317,  1823 ;  Com.  v.  Beaumont,  4 
Rawle  366,  1834;  Com.  v.  Harrold,  204  Pa.  154,  1902;  (g2)  but  writ 
of  error  given  from  judgment  on  traverse  by  Act  June  13,  1836,  §12, 
P.  L.  592  (see  §76,  below) :  McGinnis  v.  Com,,  74  Pa.  245,  1874;  (h2) 
mandamus  to  compel  special  tax  assessment  under  Act  March  31, 
1864,  P.  L.  162,  4  Purd.  4715,  pi.  400:  Lehigh  Coal  &  Nav.  Co.'s  Ap., 
112  Pa.  360,  1886;  (12)  nor  is  appeal  from  rule  for  alternative  writ 
allowed  under  Act  June  14,  1876,  §7,  P.L.  628:  Com.  v.  County,  133 
Pa.  180,  1890;  (J2)  mercantile  tax  assessment  under  Act  May  2,  1899, 
P.  L.  184,  3  Purd.  2516,  pi".  1;  Pittsburg  Supply  Co.'s  Tax,  38  Pa. 
Super.  121,  1909;  (k2)  municipalities,  damages  for  annexation  of 
township  or  borough  under  Act  April  17,  1876,  P.  L.  38,  1  Purd.  653, 
pi.  70 :  Elk  Twp.  School  Dist.,  146  Pa.  1,  1892 ;  (12)  paupers,  removal 
under  Act  June  13,  1836,  P.  L.  539,  3  Purd.  3567,  pi.  66;  Mifflin  Twp., 
18  Pa.  17,  1851;  Mauch  Chunk  v.  Nescopeck,  21  Pa.  46,  1853;  Brad- 
ford Twp.  v.  Twp.,  57  Pa.  495,  1868;  (m2)  but  writ  of  error  given  by 
Act  March  16,  1868,  §1,  P.  L.  46,  2  Purd.  1435,  pi.  9  (§85,  below) : 
Lewisburg  Boro.  Overseers  v.  Overseers,  1  W.  N.  C.  209,  1875;  Wayne 
Twp.  v.  Jersey  Shore,  81%  Pa.  264,  1875;  Parker  Twp.  Overseers' 
Ap.,  1  Atl.  Rep.  716,  1885;  (n2)  railroads,  land  damages,  by  writ  of 
error  but  not  appeal  under  Act  May  5,  1832,  P.  L.  501,  4  Purd.  3918, 
pi.  272  (see  §90,  below):  Hall's  Ap.,  56  Pa.  238,  1868;  (o2)  recogni- 
zance, distribution  by  common  pleas  of  proceeds  of  forfeiture  in  quar- 
ter sessions  under  Act  July  30,  1842,  P.  L.  454,  §§25  and  26,  2  Purd. 
1676,  pi.  17  (see  §92,  below) :  Com.  v.  Justice,  34  Pa.  165,  1859;  (q2) 
reference,  by  writ  of  error  but  not  appeal  under  Act  June  22,  1871,  P. 
L.  1363  (see  §93) :  Thornton  v.  Ins.  Co.,  71  Pa.  234,  1874;  (r2)  sher- 
iff's sales,  setting  aside,  under  Act  April  16,  1827,  P.  L.  471:  Young's 
Ap.,  2  P.  &  W.  380,  1831;  (s2)  sheriff's  sale,  confirmation  of,  and  or- 
dering acknowledgment  of  deed :  Rees  v.  Berryhill,  1  Watts  263,  1832 ; 
(t2)  special  court,  necessity  for,  under  Act  April  14,  1834,  P.  L.  333; 
Phila.  Library  Co.  v.  Ingham,  1  Whar.  72,  1835;  (n2)  streets,  from 
the  decree  of  the  quarter  sessions:  Chestnut  Street,  86  Pa.  88,  1878; 

101 


SPECIAL  JURISDICTION  AND  PARTIES. 


§48    (2) -(5)    Certiorari — Common  Law — Const,  and  Act  1874      [Chap.  5, 

(v2)  or  from  common  pleas  under  Act  May  16,  1891,  P.  L.  79,  3  Purd. 
2670,  pi.  77 :  Diamond  Street,  196  Pa.  254,  1900. 

(2)  Certiorari.     (a)  Certiorari  is  confined  to  correction  of  irregu- 
larity in  proceedings  and  of  excess  of  jurisdiction:  Com.  v.  Nathans, 
5  Pa.  124,  1847;  Carpenter's  Case,  14  Pa,  486,  1850;  Penna.  R.  R.  v. 
Congregation,  53  Pa.  445,  1867;  Greib  v.  Kuttner,  135  Pa.  281,  1890; 
Morch  v.  Raubitschek,  159  Pa.  559, 1894;  Com.  v.  Tragic,  4  Pa.  Super. 
159,  1897;  see  §182,  note  (4) ;  (b)  certiorari  lies  to  proceedings  of  all 
inferior  courts:  Gosline  v.  Place,  32  Pa.  520,  1859;  Chase  v.  Miller, 
41  Pa.  403,  1862;   (c)  except  where  judgment  is  made  conclusive  by 
statute:  Spicer  v.  Rees,  5  Rawle  119,  1835;  Anville  Twp.  Overseers 
v.  Smith,  2  S.  &  R,  363,  1816 ;  Penna.  Pulp  Co.  v.  Stoughton,  106  Pa. 
458,  1884;  Mahanoy  City  v.  Wadlinger,  142  Pa.  308,  1891;   (d)   or 
where  case  stated  by  parties  reserves  no  right  of  review:  Chase  v. 
Miller,  41  Pa.  403, 1862.    For  further  decisions,  see  §182,  n.  (4),  below. 

(3)  Common  Law  Proceedings.    Writ  of  error  is  proper  method  of 
review  of  final  judgment  in  any  court  where  proceedings  are  accord- 
ing to  the  course  of  common  law,  and  of  such  interlocutory  and  aux- 
iliary orders  as  have  been  made  so  reviewable  by  statute:  Rand  v. 
King,  134  Pa.  641, 1890.  For  other  decisions,  see  §182,  note  (2),  below. 

(4)  Appeal  Under  Act  1889.    The  Act  of  1889  does  not  extend  the 
right  or  alter  the  modes  of  review,  but  merely  changes  the  names  of 
the  former  modes  and  the  earlier  statutes  regulating  writs  of  error, 
certiorari,   and   appeals   are   still  in  force:  Rand  v.  King,  134  Pa. 
641, 1890 ;  Camp  Hill  Boro.,  142  Pa.  511,  1891 ;  Gates  v.  R.  R.,  154  Pa. 
566,  1893;  Christner  v.  John,  171  Pa.  527,  1895;  Diamond  Street,  196 
Pa.  254,  1900 ;  Shoup  v.  Shoup,  205  Pa.  22,  1903 ;  Katherine  Water  Co., 
32  Pa.  Super.  94,  1906.    See  §182,  note  (1),  below. 

(5)  Appeal  Under  the  Constitution  and  Act  of  1874.     (a)   The 
constitution  provided  for  an  appeal  to  the  common  pleas  by  the  per- 
son injured  only;  the  right  was  made  mutual  by  the  Act  of  1874: 
Long's  Ap.,  87  Pa.  114,  1878;  Towanda  Bridge  Co.,  91  Pa.  216,  1880; 
(b)  a  party  against  whom  benefits  for  vacating  a  street  are  assessed 
may  appeal:  Hare  v.  Rice,  142  Pa.  608,  1891;  Mount  Pleasant  Ave., 
171  Pa.  38,  1895 ;  (c)  but  the  Act  of  1874  does  not  apply  to  an  action 
against  a  county  or  township  for  damages  in  proceedings  to  open  or 
change  the  grade  of  a  public  road  running  through  the  county,  be- 
cause the  land  for  such  road  is  taken  by  the  state  and  not  by  the 
county  or  township:  Lamoreux  v.  County,  116  Pa.  195,  1887;  Wagner 

I O2 


STATUTORY  PROCEEDINGS. 


§§48-101]  Accounting — Equity — Orphans'   Court  §  41) 

v.  Twp.,  132  Pa.  636,  1890;  Shoe  v.  Twp.,  3  Pa.  Super.  137,  1896; 
Snively  v.  Twp.,  218  Pa.  249,  1907;  Smith  v.  Twp.,  35  Pa.  Super.  507, 
1908 ;  (d)  unless  liability  is  imposed  by  statute :  Hutchlnson  v.  Twp., 
14  Pa.  Super.  546,  1900;  (e)  a  bridge  company  cannot  appeal  from  a 
decree  of  court  fixing  the  rate  of  toll  for  use  of  their  bridge:  Monon- 
gahela  Bridge  Co.  v.  Ry.,  114  Pa.  478,  1887. 
(6)  Time  for  Appeal.  See  §126,  below. 

§49.  Account —  (A)  Preliminary  Question  of  Liability 
in  Equity.  An  appeal  to  the  Supreme  (or  the  Superior) 
Court  of  the  proper  district  shall  be  allowed  to  any  of  the 
defendants  or  parties  aggrieved  [by  the  decision  or  de- 
cree of  the  court  of  common  pleas  in  favor  of  the  plaintiff 
upon  the  preliminary  question  of  liability  to  account,  in 
equity  cases  where  the  complainant  prays  for  an  account 
from  the  defendant  who  denies  any  liability]  in  the  same 
manner  as  is  allowed  by  law  from  final  decrees,  and  upon 
perfecting  such  appeal  further  proceedings  shall  be  sus- 
pended until  such  appeal  is  determined:  [Provided,  how- 
ever, That  such  appeal  must  be  taken  within  twenty  days 
after  such  order  or  decree  has  been  entered  of  record  in 
the  case  to  which  it  belongs].  And  all  such  appeals  shall 
be  heard  by  the  Supreme  Court  in  any  district  in  which  it 
may  be  in  session,  as  is  provided  in  cases  in  equity  origi- 
nating in  the  Supreme  Court,  and  pending  such  appeal. 
Act  June  24,  1895,  §i,  P.  L.  243,  2  Purd.  1439,  pi.  17. 

— (B)  Review  of  Accounts  in  Orphans'  Court.  The 
judges  of  the  orphans'  court  (courts)  of  the  common- 
wealth of  Pennsylvania,  within  five  years  after  the  final 
decree,  confirming  the  original  or  supplementary  account 
of  any  executor,  administrator  or  guardian,  which  has  or 
may  be  hereafter  passed  as  aforesaid,  upon  petition  of 
review  being  presented  by  such  executor,  administrator 
or  guardian,  or  their  legal  representatives,  or  by  any  per- 

103 


SPECIAL  JURISDICTION  AND  PARTIES. 


§  49  Accounts — Orphans'  Court — Tenants  in  Common  of  Mines  [Chap.  5, 

son  interested  therein,  alleging  errors  in  such  account, 
which  errors  shall  be  specifically  set  forth  in  said  petition 
of  review,  and  said  petition  and  errors  being  verified  by 
oath  or  affirmation,  said  orphans'  court  shall  grant  a  re- 
hearing of  so  much  of  said  account  as  is  alleged  to  be  error 
in  such  petition  of  review,  and  give  such  relief  as  equity 
and  justice  may  require  by  reference  to  auditors  or  other- 
wise, with  like  right  of  appeal  to  the  Supreme  (or  Super- 
ior) Court  as  in  other  cases,  [except  that  the  appeal  shall 
be  taken  under  the  provisions  of  this  act,  within  one  year 
after  the  decree  made  on  the  petition  of  review:]  Pro- 
vided, That  this  act  shall  not  extend  to  any  cause  when  the 
balance  found  due  shall  have  been  actually  paid  and  dis- 
charged by  any  executor,  administrator  or  guardian.  Act 
Oct.  13,  1840,  §i,  P.  L.  1841,  3  Purd.  338o,  pi.  67. 

—  (C)  Tenants  in  Common  of  Mines.  Any  party  may 
appeal  to  the  Supreme  (or  Superior)  Court  from  any  final 
decree  made  by  any  court  of  common  pleas  under  this  act 
[providing  for  accounting  in  equity  from  tenants  in  com- 
mon of  mines].  Act  April  25,  1850,  §25,  P.  L.  573,  i  Purd. 
232,  pi.  8. 

(1)  Superior  Court.    For  jurisdiction  of  the  Superior  Court,  see 
Chapter  VI,  §108  et  seq. 

(2)  Prayer  for  Account — Jurisdiction,     (a)  Appeal  will  lie  from 
decree  directing  plaintiff  to  account,  although  plaintiff  has  not  prayed 
for  account;  defendants  are  regarded  as  plaintiffs  in  cross-bill:  Laf- 
ferty  v.  Lafferty,  174  Pa.  536,  1896;   (b)  appeal  under  Act  of  1895 
is  confined  to  cases  where  court  has  made  decree  in  exercise  of  its 
chancery  powers:  Hall  v.  Haines,  38  Pa.  Super.  517,  1909;    (c)   an 
application  to  refer  an  auditor's  report  back  to  the  same  or  another 
auditor,  is  in  the  discretion  of  the  orphans'  court,  and  not  the  sub- 
ject of  appeal:  Patterson's  Ap.,  Sup.  Court,  April  4,  1853,  M.  S.;  see 
also  Rhoads's  Ap.,  39  Pa.  186,  1861;    (d)    decree  directing  account 
cannot  be  appealed  from  under  Act  of  1895,  where  defendant's  an- 
swer admits  liability  to  account  but  seeks  to  limit  period  of  account- 

104 


STATUTORY  PROCEEDINGS. 


§§48-101]       Affidavits  of  Defense,  Judgments  for  Insufficient  §50 

ing  by  alleged  settlements  covering  only  part  of  account:  Beatty  v. 
Safe  Deposit  Co.,  226  Pa.  430,  1910. 

(3)  Time  for  Appeal.  The  Act  of  May  19,  1897  (§126,  below),  al- 
lows an  appeal  to  be  taken  in  all  cases  within  six  months  from  the 
entry  of  the  judgment  or  decree  appealed  from. 

§  50.  Affidavits  of  Defense,  Judgment  for  Insufficient — 
(A)  Writ  by  Plaintiff.  In  all  actions  now  pending  or 
which  may  hereafter  be  brought,  wherein  by  act  of  as- 
sembly or  rule  of  court,  the  plaintiff  is  entitled  to  ask  for 
judgment  for  want  of  a  sufficient  affidavit  of  defense,  and 
the  court  shall  decide  against  his  right  to  such  judgment, 
plaintiff  may  except  to  such  decision  and  take  a  writ  of 
error  to  the  Supreme  (or  Superior)  Court.  Act  April  18, 
1874,  §i,  P.  L.  64,  2.  Purd.  1436,  pi.  ii. 

—  (B)  Dismissing  Writ  or  Entering  Judgment  in  Ap- 
pellate Court — Right  to  Second  Writ  preserved.  If  in  the 
opinion  of  the  Supreme  (or  Superior)  Court  the  decision 
of  the  court  below  is  correct,  the  writ  of  error  shall  be  dis- 
missed at  the  costs  of  the  plaintiff,  but  without  prejudice 
to  his  right  to  trial  by  jury  and  a  second  writ  of  error 
after  final  judgment;  but  if  the  affidavit  of  defense  should 
be  deemed  by  the  Supreme  (or  Superior)  Court  insufficient 
to  prevent  judgment,  then  said  court  shall  remit  the  re- 
cord to  the  court  below,  with  directions  to  enter  judgment 
against  the  defendant  or  defendants  for  such  sum  as  to 
right  and  justice  may  belong,  unless  other  legal  or  equit- 
able cause  be  shown  to  the  court  below  why  such  judgment 
should  not  be  so  entered.  Act  April  18,  1874,  §2,  P.  L.  64, 
2,  Purd.  1437,  pi.  12. 

(1)  Judgment  for  Part  of  Claim,  Writ  lies  to  refusal  to  enter 
judgment  for  part  of  claim  as  to  which  affidavit  of  defense  is  insuffi- 
cient ;  but  only  in  clear  cases :  New  Castle  v.  Electric  Co.,  2  Pa.  Super. 
228,  1896 ;  Shea  v.  Wells,  8  Pa.  Super.  511,  1898. 

105 


SPECIAL  JURISDICTION  AND  PARTIES. 


§50  (2) -(4)      Affidavits  of  Defense,  Judgments  for  Insufficient     [Chap.  5, 

(2)  Exception  Necessary,     (a)  Record  must  show  exception  taken 
to  refusal  of  judgment,  or  writ  will  be  quashed:  Titusville  B.  &  L. 
Asso.  v.  McCombs,  92  Pa.  364,  1880 ;  Watson  v.  Supplee,  14  W.  N.  C. 
452,  1884;  Patterson  v.  Roberts,  109  Pa.  42,  1885;  Mehring  v.  B.  &  L. 
Asso.,  17  W.  N.  C.  422,  1886;  Com.  v.  Fleming,  157  Pa.  644,  1893;  Se- 
curity S.  &  L.  Asso.  v.  Anderson,  172  Pa.  305,  1896;  Com.  v.  Cavett, 
23  Pa.  Super.  57, 1903 ;  Chambers  v.  McLean,  23  Pa.  Super.  551,  1903 ; 
Monongahela  Gas  Co.  v.  Gas  Co.,  43  Pa.  Super.  619,  1910;   (b)  re- 
fusal of  court  below  to  note  exceptions  on  ground  that  they  were  not 
presented  in  time  cannot  be  reviewed:  Patterson  v.  Roberts,  109  Pa. 
42,  1885 ;  (c)  where  rule  for  judgment  is  made  absolute,  no  exception 
by  defendant  is  necessary,  as  the  affidavit  of  defense  is  already  a  part 
of  the  record :  Brainerd  v.  Davis,  21  Pa.  Super.  599,  1902. 

(3)  Superior  Court.    For  jurisdiction  of  Superior  Court,  see  Chap- 
ter VI,  §108  et  seq. 

(4)  Scope  of  Act — Appeals  not  Encouraged,     (a)   This  act  was 
intended  to  reach  only  clear  cases  in  law  and  thus  prevent  delay  of 
trial.    Appeals  under  it  are  not  to  be  encouraged,  but  are  limited  to 
clear  cases  of  error:  Griffith  v.  Sitgreaves,  81^  Pa.  378,  1876;  Rad- 
cliffe  v.  Herbst,  135  Pa.  568,  1890;  Murphy  v.  Cappeau,  147  Pa.  45, 
1892;  Aetna  Ins.  Co.  v.  Confer,  158  Pa.  598,  1893;  Paine  v.  Kindred, 
163  Pa.  638,  642, 1894;  Security  S.  &  L.  Asso.  v.  Anderson,  172  Pa.  305, 
1896 ;  Max  Meadows  L.  &  I.  Co.  v.  Mendinhall,  4  Pa.  Super.  398,  1897 ; 
Assistance   B.    &   L.   Asso.    v.    Wampole,   6    Pa.    Super.    238,   1897; 
Ferree  v.  Young,  6  Pa.  Super.  307,  1898;  Shea  v.  Wells,  8  Pa.  Super. 
511,  1898;  Holland  v.  Iron  Works,  9  Pa.  Super.  261,  1899;  Walsh  v. 
Bourse,  15  Pa.  Super.  219,  1900 ;  Kidder  E.  I.  Co.  v.  Muckle,  198  Pa. 
388,  1901 ;  Arnold  v.  Stoner,  18  Pa.  Super.  537,  1901 ;  Marquis  v.  Mc- 
Kay, 216  Pa.  307,  1907;  Phila.  T.  &  S.  Co.  v.  Smith  Co.,  37  Pa.  Super. 
149, 1908;  Wilson  v.  Trust  Co.,  225  Pa.  143, 1909;  New  York  Tr.  Co.  v. 
Coal  Co.,  227  Pa.  630, 1910;  Northwest  B.  &  L.  Asso.  v.  Godfrey,  41  Pa. 
Super.  237,  1910;  Com.  v.  Gould,  43  Pa.  Super.  317,  1910;  Sloss-Shef- 
field  Co.  v.  Iron  Co.,  46  Pa.  Super.  164,  1911 ;  (b)  the  Supreme  Court 
has  suggested  that,  as  this  act  has  failed  to  hasten  final  judgment, 
but,  on  the  contrary,  tends  to  promote  delay,  it  should  be  repealed  or 
modified:  Chase  v.  Life  &  Trust  Co.,  207  Pa.  24,  1903;   (c)  appeal 
should  be  taken  before  trial  takes  place:  Kessler  v.  Perrong,  22  Pa. 
Super.  578,  1903;  (d)  where  tort  is  waived  and  suit  brought  on  con- 
tract and  case  is  tried  on  issue  raised  by  affidavit  of  defense,  no  ap- 

106 


STATUTORY  PROCEEDINGS. 


§§48-101]  Affidavits  of  Defense— Arbitration  §50  (5)  (6),  §51 

peal  lies  to  question  of  necessity  of  affidavit:  Ridgway  Co.  v.  R.  R., 
228  Pa.  641,  1910. 

(5)  Effect  of  Dismissal,     (a)  When  appeal  from  order  refusing 
judgment  is  dismissed,  appellate  court  will  not  discuss  legal  points 
raised  by  pleadings:  Phila.  v.  R.  R.,  3  W.  N.  C.  492,  1877;  (b)  the 
case  should  be  tried  as  if  no  appeal  had  been  taken :  Chartiers  Ry.  v. 
Hodgens,  77  Pa.  187,  1875 ;  Marquis  v.  McKay,  216  Pa.  307,  1907; 
(c)   but  if  judgment  on  written  contract  amounts  to  a  decision  or 
construction  thereof,  it  becomes  law  of  case:  Bolton  v.  Hey,  168  Pa. 
418,  1895. 

(6)  Supplemental  Affidavits  after  Appeal,   (a)  After  affirmance  of 
order  discharging  rule  for  judgment  with  leave  to  plaintiff  to  move 
for  judgment  for  part  of  claim,  lower  court  may  still  allow  a  supple- 
mental affidavit  to  be  filed  if  it  appears  probable  that  the  defense  is 
good  and  the  defect  in  the  affidavit  is  merely  in  the  mode  of  state- 
ment: Kyler  v.  Christman,  25  Pa.  Super.  74,  1904;  (b)  after  reversal 
of  discharge  of  rule,  supplemental  affidavit  cannot  be  filed:  Wood  v. 
Kerkeslager,  227  Pa.  536,  1910;  (c)  on  appeal  from  discharge  of  rule 
for  judgment  for  insufficiency  of  affidavit,  appellate  court  will  not  per- 
mit filing  of  supplemental  affidavit  setting  forth  certain  facts  which 
did  not  occur  to  defendant's  knowledge  until  after  appeal:   Shimp 
v.  Gray,  41  Pa.  Super.  542,  1910. 

§51.  Arbitration — Voluntary —  (A)  Either  Party  May 
Appeal.  Either  party  may  have  a  writ  of  error  to  the 
judgment  entered  thereupon  [on  the  report  of  the  referee 
in  voluntary  arbitration  proceedings]  as  in  the  case  of  a 
judgment  entered  upon  special  verdict.  Act  June  16,  1836, 
§3,  P.  L.  715,  i  Purd.  343,  pi.  4. 

(B)  Assignee  for  Benefit  of  Creditors.  When 

the  defendant  or  defendants  in  any  suit  now  pending,  or 
hereafter  to  be  brought  have  assigned  for  the  benefit  of 
creditors,  before  or  after  such  suit  brought,  or  hereafter 
may  assign,  for  the  benefit  of  creditors,  the  land  or  other 
property  which  is  the  subject  of,  or  affected  by  such  suit, 
the  assignee  or  assignees  may  appeal  from  any  award 
made  in  such  suit  against  the  defendant  or  defendants 

107 


SPECIAL  JURISDICTION  AND  PARTIES. 


§§  51,  52  Arbitration — Armories  [Chap.  5, 

under  a  rule  of  reference  entered  under  the  8th  section  of 
the  Act  of  i6th  June,  1836,  entitled  "An  act  relative  to 
reference  and  arbitration,"  and  also  to  bring  a  writ  of  error 
upon  any  judgment  which  may  be  rendered  in  any  such 
suit.  Act  June  13,  1840,  §9,  P.  L.  689,  2.  Purd.  1904,  pi.  24. 

(1)  Compulsory  Arbitration,    (a)  No  writ  of  error  lies  from  judg- 
ment  on   award   under   Compulsory   Arbitration   Act   of  March   20, 
1810;  the  remedy  is  by  appeal  to  the  court  in  which  the  case  was 
pending :  La  Barren  v.  Harriott,  2  P.  &  W.  154,  1830 ;  Kline  v.  Guth- 
art,  2  P.  &  W.  490,  1831;  Sullivan  v.  Weaver,  9  Pa.  223,  1848;  Bemus 
v.  Clark,  29  Pa.  251,  1857. 

(2)  Waiver  of  Appeal  by  Agreement,     (a)  Parties  may  stipulate 
that  award  shall  be  final  and  conclusive,  and  in  such  case  no  writ  will 
lie:  Rogers  v.  Playford,  12  Pa.  181,  1849;  McCahan  v.  Reamy,  33  Pa. 
535, 1859;  Shisler  v.  Keavy,  75  Pa.  79, 1874;  Manhattan  L.  Ins.  Co.  v. 
McLaughlin,  80  Pa.  53,  1875;  Sargeant  v.  Clark,  108  Pa.  588,  1885; 
Klingensmith  v.  Steel  Co.,  17  Pa.  Super.  210,  1901;  for  further  cases 
on  waiver  of  appeals,  see  §43,  note  (9). 

(3)  Submission  not  Under  Statute.    No  appeal  lies  where  submis- 
sion is  not  under  statute  and  right  to  writ  is  not  reserved:  Fuller  v. 
Trevor,  8  S.  &  R.  529,  1822;  Chase  v.  Miller,  41  Pa.  403,  1862;  Shain- 
line's  Ap.,  2  Walk.  325,  1885. 

(4)  Error  in  Record.    Judgment  on  award  will  not  be  disturbed 
unless  error  appear  in  record;  rulings  on  matters  not  of  record  can- 
not be  reviewed :  Browning  v.  McManus,  1  Whar.  177,  1836 ;  Rogers  v. 
Playford,  12  Pa.  181,  1849;  Buckman  v.  Davis,  28  Pa.  211,  1857;  Mun- 
dorf  v.  Grier,  7  Pitts.  L.  J.  (0.  S.)  164,  1859;  Keighly  v.  Directors,  7 
Pitts.  L.  J.  (0.  S.)  188,  1859;  Chase  v.  Miller,  41  Pa.  403,  1862;  Betz 
v.  Delbert,  16  W.  N.  C.  360,  1885 ;  Buckwalter  v.  Russell,  119  Pa.  495, 
1888;  Chester  v.  Mclntyre,  13  Pa.  Super.  545,  1900. 

(5)  Reference  Under  Act  of  1874.    See  §93,  below. 

§52.  Armories — Condemnation  of  Unopened  Public 
Highway.  After  final  judgment  [in  common  pleas  in 
proceedings  by  armory  board  to  condemn,  for  the  purpose 
of  erecting  armory,  realty  dedicated  as  public  highway  but 
never  opened]  either  party  may  have  a  writ  of  error.  Act 
May  3,  1909,  §2,  P.  L.  388,  5  Purd.  5796,  pi.  25. 

108 


STATUTORY  PROCEEDINGS. 


§§48-101]  Attorneys  at  Law  §53 

§53.  Attorneys-at-Law  —  Rehearing  by  Supreme 
Court.  In  all  cases  of  any  proceedings  in  any  court  of  this 
commonwealth  against  any  attorney  of  said  court  for  un- 
professional conduct  as  an  officer  of  such  court,  said  attor- 
ney shall  be  entitled  to  a  writ  of  error  from  the  Supreme 
Court  of  this  commonwealth,  as  in  civil  cases  to  said  court, 
from  any  judgment,  order  or  decree  of  said  court  against 
him  as  such  officer,  which  writ  of  error  shall  remove  the 
record  and  all  the  proceedings  therein  to  the  Supreme 
Court  to  review  the  same  de  novo;  and  the  complainant 
shall  have  the  right  to  offer  new  testimony  by  deposition 
or  otherwise  as  said  Supreme  Court  may  direct,  and,  upon 
hearing  said  Court  may  modify,  reverse  or  affirm  said 
judgment,  order  or  decree  of  the  court  below,  as  the  justice 
and  equity  of  the  case  shall  require.  Act  May  19,  1879, 
§i,  P.  L.  66,  i  Purd.  375,  pi.  15. 

And  in  case  said  judgment,  order  or  decree  shall  be  modi- 
fied or  reversed,  all  costs,  charges  and  expenses  shall  be 
paid  by  the  proper  county  in  which  said  proceedings  arose, 
and  in  case  the  same  shall  be  affirmed,  the  same  shall  be 
paid  by  such  complainant.  Act  May  19,  1879,  §2>  P-  L. 
66,  i  Purd.  375,  pi.  16. 

(1)  Review  in  all  Cases.    Intention  of  legislature  was  to  provide 
for  review  of  proceedings  of  inferior  courts  in  striking  attorneys  from 
roll,  not  merely  where  charge  is  of  unprofessional  conduct  as  officer 
of  court,  but  in  all  cases:  H.  T.'s  Case,  2  Penny.  84,  1882. 

(2)  Review  of  Discretion  of  Lower  Court.     The  Supreme  Court 
has  power  to  review  exercise  of  discretion  by  court  below  in  disbar- 
ment proceedings:  Steinman's  Case,  95  Pa.  220,  1880. 

(3)  Review  de  Novo — Constitutional  Law.    It  is  doubtful  whether 
the  provision  that  the  Supreme  Court  shall  review  cases  de  novo  and 
hear  new  testimony  is  consistent  with  the  restriction  as  to  original  jur- 
isdiction in  Const.,  Art.  5,  §3, 1  Purd.  175,  §35,  above:  Steinman's  Case, 
95  Pa.  220,  1880;  Shoemaker's  Case,  2  Pa.  Super.  27,  1896. 

(4)  Time  for  Appeal.     Under  Act  May  19,  1897,  §4,  P.  L.  67,  2 

109 


SPECIAL  JURISDICTION  AND  PARTIES. 


§  54  Auditors'  Settlements — Municipalities  [Chap.  5, 

Purd.  1433,  pi.  3,  §126,  below,  no  appeal  shall  be  taken  after  six  cal- 
endar months. 

(5)  Disbarment  Proceedings — Jurisdiction  in  Supreme  Court  Only. 
By  Act  of  May  5, 1899,  §6,  P.  L.  248,  4  Purd.  4517,  pi.  34,  §107,  below, 
jurisdiction  in  disbarment  proceedings  is  in  the  Supreme  Court  ex- 
clusively. 

§54.  Auditors'  Settlements — Municipalities,  etc. — (A) 
Judgment  on  Issue — Joint  Appeal  by  Taxpayers.  In  all 
such  appeals  [to  the  court  of  common  pleas  by  ten  or 
more  taxpayers  from  the  report  of  county  auditors]  the 
courts  of  common  pleas  may  direct  an  issue  to  be  tried  by 
a  jury,  upon  whose  verdict  final  judgment  shall  be  entered, 
reserving  the  right  of  all  parties  to  appeal  to  the  Supreme 
(or  Superior)  Court  as  provided  in  other  appeals.  Act 
June  12,  1878,  §i,  P.  L.  208,  i  Purd.  837,  pi.  27. 

(B)  Appeal  on  Exceptions  to  Rulings.  Hereafter 

in  all  cases  pending  and  undetermined  in  any  court  of  com- 
mon pleas  in  this  commonwealth,  which  are  appeals  from 
settlements  or  reports  made  by  county,  borough  or  town- 
ship auditors,  it  shall  be  lawful  for  any  party  to  except  to 
any  ruling  or  decision  of  the  court  upon  any  question  or 
point  of  law  that  may  arise;  and  an  appeal  may  be  taken 
therefrom  to  the  Superior  or  Supreme  Court:  Provided, 
That  such  exceptions  and  appeals  shall  be  governed  and 
regulated  by  the  laws  now  in  force,  regulating  exceptions 
and  appeals  to  the  Supreme  or  Superior  Courts  in  civil 
cases.  Act  May  n,  1901,  §i,  P.  L.  185,  2  Purd.  1439,  pi.  18. 

Hereafter  it  shall  be  lawful  for  any  party  to  except  to 
any  ruling  or  decision  of  the  court  [of  common  pleas  on 
appeal  from  the  report  of  auditors  of  any  borough,  town- 
ship, poor  district  or  school  district,  to  determine  disputed 
questions  of  fact  between  accountant  and  the  officers  repre- 
senting the  borough,  township  or  district]  upon  any  ques- 

110 


STATUTORY  PROCEEDINGS. 


§§48-101]     Auditors'  Settlements — Municipalities — Poor  District  §54 

tion  or  point  of  law  that  may  arise,  and  appeal  may  be 
taken  therefrom  to  the  Superior  or  Supreme  Court:  Pro- 
vided, That  such  exceptions  and  appeals  shall  be  governed 
and  regulated  by  the  law  now  in  force  regulating  excep- 
tions and  appeals  to  the  Supreme  and  Superior  Courts  in 
civil  actions.  Act  June  9,  1911,  §4,  P.  L.  865. 

— (C)  Poor  District — Appeal  by  Accountant,  Board  of 
Directors  or  Taxpayer.  Any  person,  whose  accounts  shall 
have  been  audited,  as  aforesaid,  or  the  Board  of  Directors 
of  the  said  poor  district,  or  any  taxpayer  on  behalf  of  said 
poor  district,  may  appeal  [from  the  decision  of  the  com- 
mon pleas  on  appeal  from  report  of  auditors  appointed  to 
adjust  the  accounts  of  the  directors,  treasurer  and  tax  col- 
lectors of  any  poor  districts  composed  of  more  than  one 
municipality  or  municipal  district,  wholly  within  but  less 
extensive  than  said  county  the  population  of  which  is  not 
less  than  150,000  and  not  more  than  300,000],  to  the  Su- 
perior or  Supreme  Court  in  the  same  manner  as  is  pro- 
vided by  law  in  the  case  of  appeals  from  the  reports  of 
township  or  borough  auditors.  Act  June  19,  1911,  §i, 
P.  L.  1071. 

(1)  Record — Petition.     Taxpayers  are  made  parties  to  record  by 
petition  presented  to  court  below,  which  has  no  discretionary  power 
either  to  grant  or  withhold  same :  Bell  v.  County,  149  Pa.  381,  1892. 

(2)  Final  Judgment  Necessary,     (a)    Order   discharging  rule  to 
strike  off  appeal  from  report  of  county  auditors  settling  accounts  of 
county  commissioners  is  interlocutory,  and  no  appeal  lies  until  final 
judgment:  Moore's  Ap.,  203  Pa.  376,  1902;  (b)  where  rule  to  strike  off 
issue  was  made  absolute,  conditioned  on  payment  of  costs  by  county 
within  thirty  days,  otherwise  rule  to  be  discharged,  and  county  appeals 
without  payment  of  costs  before  thirty  days  have  expired,  appeal  will 
be  quashed:  Huntingdon  Co.  v.  Mason,  21  Pa.  Super.  148,  1902. 

(3)  Exceptions  Necessary.    Under  Act  of  1901,  if  proceedings  are 
regular,  appellate  court  will  consider  only  questions  specifically  ex- 
cepted  to:  Dunmore  Boro.  School  Dist  v.  Wahlers,  28  Pa.  Super.  35, 

III 


SPECIAL  JURISDICTION  AND  PARTIES. 


§§55,56        Banks — Boroughs,  Incorporating;  Public  Buildings     [Chap.  5, 

1905 ;  Berks  Co.  v.  Linderman,  30  Pa.  Super.  119, 1906 ;  Devlin 's  Case, 
39  Pa.  Super.  311,  1909. 

(4)  Superior  Court.  For  jurisdiction  of  the  Superior  Court,  see 
Chapter  VI,  §108  et  seq.,  below. 

§55.  Banks — Fraudulent  Insolvency — Proceeding  by 
Assignee.  Upon  final  decree  made  [in  proceedings  by  an 
assignee  of  a  bank  against  its  officers  and  directors  for 
fraudulent  insolvency],  either  party  may  remove  the  pro- 
ceedings to  the  Supreme  (or  Superior)  Court,  as  in  other 
cases.  Act  April  2,  1867,  §2,  P.  L.  71,  I  Purd.  445-6,  pi.  175. 

(1)  Superior  Court.  For  jurisdiction  of  the  Superior  Court,  see 
Chapter  VI,  §108  et  seq.,  below. 

§56.  Boroughs — (A)  Decree  Incorporating  —  Joint  Ap- 
peal. In  all  proceedings  now  pending  or  which  may  here- 
after be  instituted,  in  any  court  of  quarter  sessions  within 
the  commonwealth  for  the  erection  of  boroughs,  wherein 
a  decree  has  been  entered  incorporating  any  town  or  vil- 
lage, an  appeal  shall  lie  from  any  such  decree  within  twenty 
days  from  the  recording  of  such  decree,  by  not  less  than 
three  persons  aggrieved  thereby,  to  the  [Supreme]  (Super- 
ior) Court  of  the  commonwealth.  Act  May  9,  1889,  §i, 
P.  L.  174,  i  Purd.  482,  pi.  1 8. 

—  (B)  Damages — Public  Buildings.  Any  party  inter- 
ested therein  [in  proceedings  in  the  court  of  common 
pleas  to  assess  damages  for  private  property  taken  for  pub- 
lic buildings  or  works  by  borough,  where  a  jury  trial  may 
be  demanded  by  the  owner]  may,  within  thirty  days  after 
final  decree,  have  an  appeal  to  the  Superior  or  the  Supreme 
Court.  If  no  exceptions  are  filed  or  no  demand  made  for 
trial  by  jury,  within  the  said  thirty  days  after  the  filing 
cf  said  report,  [of  viewers,  etc.]  the  same  shall  become 

112 


STATUTORY  PROCEEDINGS. 


§§  48-101]  Boroughs — Eminent  Domain  §  56 

absolute.  Act  June  10,  1901,  §5,  P.  L.  555,  i  Purd.  528-9, 
pi.  302.  See  note  8,  this  section,  below. 

— (C) — Library  Purposes.  After  final  judgment  [in  pro- 
ceedings in  the  court  of  common  pleas  to  assess  damages 
for  private  property  taken  for  public  library  purposes  by 
borough  councils  or  school  boards  where  a  jury  trial  may 
be  demanded  by  any  party  interested]  either  party  may 
appeal  to  the  Superior  or  Supreme  Court,  under  the  pro- 
visions and  in  the  manner  prescribed  in  other  cases.  Act 
May  n,  1901,  §4,  P.  L.  169,  2  Purd.  2260,  pi.  40. 

— (D) — Electric  Light  Plant.  After  final  judgment  [in 
proceedings  in  the  court  of  common  pleas  to  assess  dam- 
ages for  taking  electric  light  plant  by  boroughs,  where  a 
jury  trial  may  be  demanded  by  either  party]  either  party 
may  have  an  appeal  to  the  Supreme  (or  Superior)  Court  in 
the  manner  prescribed  in  other  cases.  Act  May  20,  1891, 
§i,  P.  L.  90,  i  Purd.  500,  pi.  132. 

— (E) — Garbage  Furnaces  and  Sewage  Disposal  Plants. 
Upon  the  entry  of  final  judgment  on  any  issue  had  upon 
such  appeal  [to  common  pleas  from  report  of  viewers  as- 
sessing damages  in  proceedings  by  boroughs  to  appropri- 
ate real  estate  for  purpose  of  erecting  garbage  furnaces 
and  sewage  disposal  plants]  either  party  shall  have  the 
right  to  an  appeal  to  the  Superior  or  Supreme  Court  as 
ia  other  cases.  Act  April  i,  1909,  §5,  P.  L.  79,  5  Purd.  5286, 
pi.  85. 

— (F) — Public  Parks  and  Playgrounds.  From  such  con- 
firmation of  the  viewers'  report,  and  from  final  judgment 
on  the  verdict  in  cases  of  trial  by  jury  [in  proceedings  by 
townships  of  first  class  and  boroughs  to  condemn  realty  for 
public  parks  and  playgrounds]  either  party  may  have  an 
appeal  to  the  Superior  Court  or  Supreme  Court,  as  in  other 
cases.  Act  May  3,  1909,  §10,  P.  L.  401,  5  Purd.  5821,  pi.  20. 

"3 


SPECIAL  JURISDICTION  AND  PARTIES. 


§  56  Boroughs — Eminent    Domain  [Chap.  5, 

— (G) — Change  of  Grade  or  Lines  of  Streets.  [From 
judgment  of  the  court  of  common  pleas,  confirming  the 
report  of  viewers,  on  exceptions  in  proceedings  to  assess 
damages  for  changing  grades  or  lines  of  streets  or  enlarg- 
ing the  same]  either  party  shall  be  entitled  to  an  appeal  as 
in  other  cases.  Act  May  24,  1878,  §i,  P.  L.  129,  i  Purd. 
521-2-3,  pi.  270. 

— (H) — Connecting  with  Sewer  of  Adjoining  Munici- 
pality. Either  party  may  appeal  from  the  decision  of  the 
court  of  quarter  sessions  [on  report  of  viewers  assessing 
damages  and  expenses  for  making  connection  to  sewer  of 
adjoining  municipality  or  township  of  the  first  class]  to 
the  Superior  Court.  Act  July  17,  1901,  §2,  P.  L.  668,  i 
Purd.  853,  pi.  119. 

— (I)  Benefits  and  Damages — Streets,  Bridges  and  Sew- 
ers. Within  thirty  days  after  the  confirmation,  modifica- 
tion, changing  or  correcting  of  any  report  [of  viewers  on 
exceptions  in  proceedings  in  the  court  of  common  pleas 
to  assess  benefits  and  damages  for  taking,  using,  keeping 
o.-  injuring  private  lands,  property  or  material  by  munici- 
pal corporations  in  the  laying  out,  opening,  widening, 
straightening,  extending  or  grading,  or  changing  grade  or 
lines  of  streets,  paving,  macadamizing,  or  otherwise  im- 
proving of  streets,  lanes  or  alleys,  the  construction  of 
bridges  and  the  piers  and  abutments  therefor,  the  construc- 
tion of  slopes,  embankments  and  sewers,  the  changing  of 
water-courses  or  vacation  of  streets  or  alleys]  any  interest- 
ed party  may  appeal  from  the  said  decree  to  the  Superior  or 

Supreme  Court  as  the  case  may  be After  verdict 

and  final  judgment  [on  the  trial  by  jury  of  an  appeal  by  the 
property  owner  to  the  court  of  common  pleas  from  the 
report  of  viewers]  either  party  may  have  an  appeal  to  the 
Superior  Court  or  Supreme  Court  as  in  other  cases.  No 

114 


STATUTORY  PROCEEDINGS. 


§§48-101]  Boroughs — Eminent  Domain — Liens  §56 

appeal  taken  under  this  act  shall  prevent  the  filing  of  liens 
by  any  municipality  for  any  assessment  made  by  said  re- 
port; but,  upon  the  final  termination  of  the  issue,  the  court 
shall  make  such  order  as  to  the  lien  filed  as  shall  appear 
right  and  proper.  Act  April  2,  1903,  §6,  P.  L.  124,  3  Purd. 
2739,  pi.  90;  Id.  2741,  pi.  91.  See  notes  (5),  (6)  and  (8) 
this  section,  below. 

— (J) — Enclosing  Water-Course.  Any  party  interested 
in  any  assessment  of  damages  or  benefits  [in  proceedings 
in  the  court  of  common  pleas  to  assess  benefits  and  dam- 
ages for  taking  or  injuring  private  property  in  confining, 
paving  or  enclosing  any  creek,  run  or  natural  waterway  by 
boroughs,  where  a  jury  trial  may  be  demanded  by  the 
owner]  may,  within  thirty  days  after  final  decree,  have  an 
appeal  to  the  higher  courts.  Act  July  10,  1901,  §6,  P.  L. 
634,  i  Purd.  531,  pi.  315. 

— (K) — Altering  Water-Course.  Any  party  interested  in 
any  assessment  of  damages  or  benefits  [in  proceedings  in 
the  court  of  common  pleas  to  assess  benefits  and  dam- 
ages for  entering  upon  or  taking  private  property  or  ma- 
terials in  vacating,  changing,  altering  or  relocating  the 
course  or  channel  of  any  creek,  run  or  natural  water-way, 
other  than  navigable  streams,  or  streams  used  as  a  source 
of  supply  by  the  municipality  or  a  water  company  within 
the  limits  of  any  borough  or  city,  where  a  jury  trial  may  be 
demanded  by  the  owner]  may,  within  thirty  days  after 
final  decree,  have  an  appeal  to  the  Supreme  or  Superior 
Court.  Act  April  28,  1899,  §7,  P.  L.  74,  3  Purd.  2768,  pi. 
220. 

— (L)  Liens,  and  Procedure  thereon.  From  any  defi- 
nitive judgment,  order  or  decree,  entered  by  the  court  of 
common  pleas  under  any  of  the  provisions  of  this  act  [pro- 
viding when,  how,  upon  what  property  and  to  what  extent 


SPECIAL  JURISDICTION  AND  PARTIES. 


§56,  (l)-(4)  (a)  Boroughs — Liens  [Chap.  5, 

liens  shall  be  allowed  for  taxes,  and  for  municipal  im- 
provements, and  for  the  removal  of  nuisances;  the  pro- 
cedure upon  claims  filed  therefor;  the  methods  of  pre- 
serving such  liens  and  enforcing  payment  of  such  claims; 
the  effect  of  judicial  sales  of  the  properties  levied,  and  the 
manner  of  distributing  the  proceeds  of  such  sales]  or  from 
the  refusal  to  open  a  judgment  entered  by  default,  an  ap- 
peal may  be  taken  by  the  party  aggrieved  to  the  Supreme 
(or  Superior)  Court,  as  in  other  cases.  Act  June  4,  1901, 
§40,  P.  L.  364,  3  Purd.  2646,  pi.  48. 

Nothing  in  this  act  [relating  to  the  regulation  of  muni- 
cipal liens  in  boroughs,  validating  liens  theretofore  filed] 
shall  be  taken  to  restrict  the  right  of  either  plaintiff  or  de- 
fendant, in  proceedings  under  it,  to  appeal  as  in  other 
cases.  Act  May  3,  1909,  §7,  P.  L.  385,  5  Purd.  5689,  pi.  22. 

(1)  Appeal  in  Eminent  Domain  Cases.    See  Art.  16,  §8,  Const,  and 
Act  of  1874,  §48  (A),  above. 

(2)  Superior  Court.    For  jurisdiction  of  Superior  Court,  see  Chap- 
ter VI,  §108  et  seq.,  below. 

(3)  Review  Under  Act  of  1878.     (a)  In  Rodgers  v.  Boro.,  2  Pa.  C. 
C.  523,  1884,  Meyers,  P.  J.,  held  that  the  words  "as  in  other  cases" 
must  necessarily  apply  to  appeals  to  the  common  pleas  only,  as  these 
words  can  have  no  application  to  an  appeal  to  the  Supreme  Court. 
This  view  is  adopted  in  1  Trickett  on  Boroughs,  §283,  but  Millvale 
Boro.  v.  Poxon,  123  Pa.  497,  1889,  seems  to  decide  expressly  to  the 
contrary,  and  it  is  so  quoted  by  Wickham,  P.  J.,  in  Brown  v.  Boro.. 
12  Pa.  C.  C.  313,  1892;  (b)  the  act  does  not  apply  where  no  change  of 
grade  is  contemplated,  but  proceedings  must  be  under  Act  April  22, 
1856,  §1,  P.  L.  525:  Brady  St.,  99  Pa.  591,  1882.      The  Act  of  1856 
contains  no  provisions  for  review.    But  see  §48,  above. 

(4)  Review  Under  Act  of  1889 — Parties,     (a)  This  act  gives  no 
right  additional  to  the  right  to  certiorari  existing  theretofore  to  any 
person  aggrieved,  but  relates  to  the  remedy;  and  appeal  taken  by  less 
than  three  persons  will  be  quashed:  Wilkinsburg  Boro.,  131  Pa.  365, 
1889 ;  Swissvale  Boro.,  9  Pa.  Super.  212, 1899 ;  Swoyerville  Boro.,  12  Pa. 
Superior  118,  1899;   Edgeworth  Borough,  25  Pa.   Super.  554,  1904; 

116 


STATUTORY  PROCEEDINGS. 


§§48-101]  Boroughs— Acts  of  1889,  1903  §  56(4)  (b)-(7) 

(b)  act  does  not  give  review  on  merits,  but  appellate  court  will  con- 
sider only  such  matters  as  it  would  have  reviewed  on  certiorari  prior 
to  act;  and  the  provision  in  Act  May  9,  1889  (§182,  below),  that  cer- 
tiorari shall  be  called  appeal,  does  not  change  this:  Swissvale  Boro., 
9  Pa.  Super.  212,  1899;  Swoyerville  Boro.,  12  Pa.  Super.  118,  1899; 
Rouseville  Boro.,  12  Pa.  Super.  126,  1899 ;  Moosic  Boro.,  12  Pa.  Super. 
353, 1900;  Old  Forge  Boro.,  12  Pa.  Super.  359,  1900;  Mill  Creek  Boro., 
32  Pa.  Super.  465,  1907;  Wernersville  Boro.,  38  Pa.  Super.  462,  1909; 
see  also  Sharon  Hill  Boro.,  140  Pa.  250,  1891. 

(5)  Act  of  April  2,   1903— Title  of  Act— Amendment^Repeal. 

The  words  "changing  of  water  courses,"  "the  construction  of  slopes, 
embankments,"  and  "the  piers  and  abutments"  of  bridges  do  not 
appear  in  the  title  of  the  Act  of  April  2,  1903,  P.  L.  124,  (I),  this 
section,  above,  amending  the  Act  of  May  16,  1891,  §6,  P.  L.  75.  Sec- 
tion 8  of  the  Act  of  1891  was  amended  so  that  parts  of  streets  or 
alleys  may  be  graded,  paved,  curbed,  macadamized  or  otherwise  im- 
proved: Act  April  28,  1899,  §1,  P.  L.  100.  The  Act  of  1899  and  the 
Act  of  1891  amended  by  it,  were  repealed  so  far  as  they  provide  (a) 
for  the  extent  of  the  lien  for  taxes  or  for  municipal  improvements, 
either  before  or  after  filing  of  claims  therefor;  or  (b)  for  the  practice 
or  procedure  in  relation  to,  or  in  continuing  the  lien  of,  or  in  en- 
forcing payment  of,  such  tax  or  municipal  claims  after  filing:  Act 
June  4,  1901,  §42,  P.  L.  364,  3  Purd.  2656,  2665,  2666-7.  For  appeals 
under  this  latter  act,  see  (L)  this  section,  above. 

(6)  Review  Under  Act  of  1903 — Parties,     (a)  Disputed  questions 
of  fact  will  not  be  considered  by  the  Supreme  Court  on  appeal  from 
decree  dismissing  exceptions  to  report  of  viewers  under  Act  May  16, 
1891,  P.  L.  76,  3  Purd.  2736,  pi.  87,  amended  by  the  Act  of  1903 ;  such 
questions  can  be  raised  only  by  appeal  and  trial  by  jury:  Verona 
Boro.'s  Ap.,  5  Pa.  Super.  340,  1897;   (b)  an  order  overruling  excep- 
tions, pending  appeal  to  common  pleas  from  report  of  viewers,  is  not 
a  final  decree  from  which  appeal  lies  to  the  Supreme  Court :  Second 
Street,  161  Pa.  571,  1897;  (c)  any  property  owner  on  the  street  may 
appeal:  Lockhart  Street,  22  Pa.  C.  C.  363,  1899;  (d)  and  §4  of  Act 
April  18, 1905,  §118  (B),  below,  gives  right  to  several  parties  to  join  in 
appeal. 

(7)  Act  of  June  10,  1901.    The  body  of  the  Act  of  June  10,  1901, 
§1,  (B),  above,  specified  "private  property  and  also  land  heretofore 
granted  or  dedicated  to  a  public  use  which  is  no  longer  used  for  the 

117 


SPECIAL  JURISDICTION  AND  PARTIES. 


§  56  (8),  §§  57,  58     Collateral  Inheritance  Tax— Common  Schools        [Ch.  5, 

purpose  for  which  the  same  was  granted  or  dedicated,"  but  the  title 
of  the  act  is  ''private  property." 

(8)  Time  for  Appeal— Act  May  19,  1897.     (a)  Under  Act  May  19, 
1897,    (§126,  below),  appeal  may  now  be  taken  within  six  months. 
Nor  does  permission  given  in  a  later  act  to  appeal  within  a  shorter 
time  take  away  right  to  appeal  within  six  months  given  by  that  act: 
Scranton  Sewer,  213  Pa.  4,  1905;    (b)   appeal  will  not  lie  from  re- 
fusal to  vacate  decree  incorporating  borough,  where  petition  to  va- 
cate is  filed  after  time  for  appeal  from  decree  has  expired :  Morton 
Boro.,  15  Pa.  Super.  466,  1900. 

(9)  Practice  on  Appeal.    For  practice  as  to  bail,  supersedeas  and 
costs,  see  §48  (D),  above;  §§163-178,  below. 

(10)  Auditors'    Settlements.     For   appeals   from   settlements   of 
borough  auditors  in  the  courts  of  common  pleas,  see  §54,  above. 

[It       li 

§57.  Collateral  Inheritance  Tax — Appraisement.  [The 
orphans'  court  shall  have  jurisdiction  to  determine  the 
valuation  and  liability  of  appraised  estates,  for  collateral 
inheritance  tax]  subject  to  the  right  of  appeal  to  the  Su- 
preme (or  Superior)  Court  as  in  other  cases.  Act  May  6, 
1887,  §12,  P.  L.  79,  i  Purd.  607-8,  pi.  14. 

(1)  Appeal  by  Commonwealth.     Notwithstanding  voluntary  pay- 
ment by  legatee,  commonwealth  may  appeal  from  decree  which  does 
not  require  payment  of  six  per  cent,  additional  charge  for  delay  in 
paying  tax  as  provided  in  §4  of  above  act :  Commonwealth 's  Ap.,  128 
Pa.  603,  1889. 

(2)  Superior  Court.    For  jurisdiction  of  Superior  Court,  see  Chap- 
ter VI,  §108  et  seq.,  below. 

§58.  Common  Schools—  (A)  Damages — Certain  Pub- 
lic Burial  Places  for  Common  School  Purposes.  Said 
proceedings  [in  court  of  common  pleas  to  assess  damages 
for  certain  public  burial  places  taken  for  common  school 
purposes,  where  a  jury  trial  may  be  demanded  by  any  party 
interested]  shall  be  with  the  same  right  of  appeal  to  the 
Supreme  (or  Superior)  Court  as  in  other  cases.  Act  June 
6,  1893,  §3,  P.  L.  342,  i  Purd.  695-6,  pi.  325. 

118 


STATUTORY  PROCEEDINGS. 


§§48-101]  Common  Schools — Corporations  §§58,59 

— (B) — Library  Purposes.  After  final  judgment  [in  pro- 
ceedings in  the  court  of  common  pleas  to  assess  damages 
for  private  property  taken  for  public  library  purposes  by 
borough  councils  or  school  boards  where  a  jury  trial  may 
be  demanded  by  any  party  interested]  either  party  may 
appeal  to  the  Superior  or  Supreme  Court  under  the  pro- 
visions and  in  the  manner  prescribed  in  other  cases.  Act 
May  n,  1901,  §4,  P.  L.  169,  2  Purd.  2260,  pi.  40. 

-  (C) — School  Purposes — Cities  of  the  First  Class. 
Either  party  shall  have  the  right  of  appeal  [from  the  judg- 
ment of  the  court  of  common  pleas  in  proceedings  to 
assess  damages  for  private  property  taken  for  school  house 
sites  or  other  school  purposes  by  cities  of  the  first  class]. 
Act  April  25,  1889,  §i,  P.  L.  50,  3  Purd.  2905,  pi.  712. 

(1)  Appeal  in  Eminent  Domain  Cases.     See  Art.  16,  §8,  Const., 
and  Act  of  1874,  §48  (A),  above. 

(2)  Superior  Court.    For  jurisdiction  of  Superior  Court,  see  Chap- 
ter VI,  §108  et  seq.,  below. 

(3)  Review  Under  Act  1889.    A  statutory  provision  for  review  ex- 
pressed in  terms  substantially  similar  to  those  in  this  act,  was  held 
to  apply  to  review  in  appellate  courts  and  not  in  common  pleas: 
See  §56,  note  (3),  above;  also  note  (1),  this  section. 

§59.  Corporations —  (A)  Land  Damages.  After  final 
judgment  [on  trial  by  jury  in  appeals  to  the  court  of  com- 
mon pleas  from  awards  of  viewers  appointed  to  assess  dam- 
ages for  property  taken  by  corporations  under  the  right  of 
eminent  domain]  either  party  may  have  a  writ  of  error 
thereto  from  the  Supreme  (or  Superior)  Court,  in  the  man- 
ner prescribed  in  other  cases.  Act  April  29,  1874,  §41,  P.  L. 
73,  i  Purd.  816-7,  pi.  155. 

—  (B)  Forfeiture  of  Franchises.  When  proceedings 
under  the  provisions  of  this  act  [for  forfeiture  of  franchises 
for  the  knowing  and  intentional  neglect  or  refusal  to  per- 

119 


SPECIAL  JURISDICTION  AND  PARTIES. 


§59,  (l)-(4)  (a)  Corporations  [Chap.  5, 

form  and  comply  with  the  terms  and  conditions  of  acts 
granting  privileges  and  immunities  on  such  terms  and  con- 
ditions to  corporations,  where  a  forfeiture  or  determination 
of  such  privileges  or  immunities  is  provided  for]  are  com- 
menced in  any  court  other  than  the  Supreme  Court,  the 
right  of  appeal  to  the  Supreme  Court  shall  exist,  to  either 
party,  as  in  other  cases.  Act  April  i,  1870,  §i,  P.  L.  45,  I 
Purd.  787-8,  pi.  48. 

— (C)  Abandonment  of  Easement — Quieting  Title.  The 
decree  of  the  court  in  refusing  the  rule  or  issue  in  any  such 
case  and  the  judgment  in  such  issue  [in  proceedings  in  the 
court  of  common  pleas  to  quiet  title  in  case  where  right 
or  title  or  right  of  possession  is  disputed  including  cases 
where  easements  of  lands  acquired  under  condemnation 
proceedings  have  been  vacated  and  ceased  to  be  used  and 
occupied  by  corporations  for  fifteen  years  or  upwards,  ex- 
cepting fee  simple  titles  vested  in  corporations  and  cases 
covered  by  Act  April  3,  1872,  P.  L.  35,  4  Purd.  3859,  pi.  116, 
relating  to  straightened  or  improved  lines  of  railroads] 
shall  be  subject  to  appeal  by  either  party  to  the  Supreme 
(or  Superior)  Court,  in  like  manner  as  appeals  are  allowed 
to  judgments  and  decrees  of  the  said  court  of  common 
pleas.  Act  June  10,  1893,  §2,  P.  L.  415,  I  Purd.  817-8,  pi. 
160. 

(1)  Appeal  in  Eminent  Domain  Cases.     See  Art.  16,  §8,  Const., 
and  Act  of  1874,  §48  (A),  above. 

(2)  Superior  Court.    For  jurisdiction  of  Superior  Court,  see  Chap- 
ter VI,  §108  et  seq.,  below. 

(3)  Constitutionality  of  Act  of  1893.     In  approving  the  Act  of 
1893,  the  Governor  suggested  that  Section  1  providing  for  the  termina- 
tion of  easements  by  abandonment  is  not  germane  to  the  title  which 
reads:  "To  Provide  for  the  Quieting  of  Titles  to  Land." 

(4)  Parties,     (a)   A  private  individual  may  not  demand  forfeit- 
ure in  the  name  of  the  commonwealth:  Com.  v.  Bridge  Co.,  20  Pa. 
185,  1853;   (b)  the  proceedings  must  be  begun  by  the  attorney  gen- 

120 


STATUTORY  PROCEEDINGS. 


§§48-101]  Corporations— Counties  §  59  (4)  (b)-§  60 

eral:  Lebanon  Water  Co.,  4  Dauph.  228,  1891;  (c)  by  Act  June  19, 
1871,  §1,  P.  L.  1360,  1  Purd.  822,  pi.  180,  courts  of  law  or  equity  are 
authorized  to  inquire  into  the  rights  and  franchises  of  corporations 
at  suit  of  private  parties  or  of  other  corporations,  where  right  or 
franchises  are  alleged  to  be  injured;  (d)  the  Act  of  1893  applies  only 
to  parties  in  possession  whose  title  is  disputed  by  parties  out  of  pos- 
session: Delaware  &  Hud.  Canal  Co.  v.  Genet,  169  Pa.  343,  1895; 
Loveland  v.  Howe,  2  Lack.  L.  N.  34,  1896;  Hilborn  v.  Wilson,  17  Pa. 
C.  C.  346, 1896;  McGarry  v.  McGarry,  9  Pa.  Super.  Ct.  71, 1898;  Gans 
v.  Drum,  24  Pa.  C.  C.  481,  1900. 

(5)  Boulevard  Companies.    The  provisions  of  the  Act  of  1874  ex- 
tend to  boulevard  companies :  Act  June  26,  1895,  §2  P.  L.  382,  1  Purd. 
536,  pi.  2. 

(6)  Bridge  Companies.    Bridge  companies  are  expressly  excepted 
by  §2,  from  the  operation  of  the  act. 

(7)  Gas  and  Water  Companies — Impurity  or  Deficiency.    See  §69, 
below. 

§60.  Counties  —  (A)  Damages — Public  Buildings. 
After  final  judgment  [on  the  trial  by  a  jury  in  proceedings 
in  the  court  of  common  pleas  to  assess  damages  for  pri- 
vate property  taken  for  county  buildings],  either  party 
may  have  a  writ  of  error  thereto,  from  the  Supreme  (or 
Superior)  Court,  in  manner  prescribed  in  other  cases.  Act 
June  i,  1883,  §i,  P.  L.  58,  i  Purd.  839-40,  pi.  40. 

—  (B) — Constructing  Highways,  Bridges  and  Tunnels. 
Any  party  so  interested,  may,  within  thirty  days  after  final 
decree  and  confirmation  of  said  report  by  said  [common 
pleas]  court  [in  proceedings  by  counties  to  condemn  prop- 
erty for  purposes  of  constructing  public  highways,  bridges 
and  tunnels],  have  an  appeal  to  the  Supreme  (or  Super- 
ior) Court.  Act  May  n,  1909  §9,  P.  L.  506,  5  Purd. 
5964,  pi.  140.  See  note  (5),  this  section. 

(1)  Appeal  in  Eminent  Domain  Cases.    See  Art.  16,  §8,  Const.,  and 
Act  of  1874,  §48  (A),  above. 

(2)  Superior  Court.     For  jurisdiction  of  Superior  Court  in  ap- 

121 


SPECIAL  JURISDICTION  AND  PARTIES. 


§60(3)-(5),§61(1)  (2)  (c)          Counties— Divorce  [Chap.  5, 

peals  from  proceedings  in  the  common  pleas,  see  Chapter  VI,  §108 
et  seq.,  below. 

(3)  Appeal  from  County  Auditors'  Reports.    See  §54,  above. 

(4)  Time  for  Appeal.    Time  limit  for  appeal  is  six  months  by  Act 
May  19,  1897.    See  §126,  below. 

(5)  Jurisdiction  of  Appellate  Courts  Under  Acts  of  1909.     The 
provision  that  the  Supreme  Court  shall  have  jurisdiction  of  appeals 
under  the  Act  of  May  11,  1909,    (B)    this  section,   above,  without 
regard  to  the  amount  involved,  would  seem  to  violate  Art.  5,  §26  of 
Const.,  §1  (B)   (C),  §48  (E),  above,  requiring  laws  relating  to  courts 
to  be  general  and  of  uniform  operation;  but  the  right  of  appeal  in 
eminent  domain  cases  exists  under  Art.  16,  §8  of  the  Constitution,  and 
the  Act  of  June  13,  1874,  §48  (A),  above;  and  the  jurisdiction  of  the 
Supreme  or  Superior  Court  would,  it  seems,  attach  according  to  the 
amount  involved,  notwithstanding  the  above  statute. 

§61.  Divorce.  Either  of  the  parties  in  any  suit  or  action 
for  divorce  now  pending  or  that  shall  hereafter  be  brought, 
after  the  final  sentence  or  decree,  may  appeal  therefrom. 
Act  June  n,  1891,  §i,  P.  L.  295,  i  Purd.  1245,  pi.  26. 

(1)  Appeal  by  Libellant  as  to  Jurisdiction.    Libellant  may  appeal 
from  decree  granting  divorce,  where  it  appears  on  face  of  record  that 
court  was  without  jurisdiction  to  entertain  libel;  but  on  such  appeal 
cannot  complain  of  mere  irregularities  not  affecting  validity  of  de- 
cree: English  v.  English,  19  Pa.  Super.  586,  1902. 

(2)  Review  of  Testimony  on  Appeal,     (a)  On  appeal  from  decree 
in    divorce,    appellate    court    must    review    testimony    and    adjudge 
whether  it  sustains  libel:  McClurg's  Ap.,  66  Pa.  366, 1871;  Rosenberry 
v.  Rosenberry,  180  Pa.  221,  1897;  Middleton  v.  Middleton,  187  Pa. 
612,  1892;  Baker  v.  Baker,  195  Pa.  407,  1900;  Reed  v.  Reed,  30  Pa. 
Super.  229,  1906;  Hedderson  v.  Hedderson,  35  Pa.  Super.  629,  1908; 
(b)  except  where  there  has  been  a  jury  trial:  Andrews  v.  Andrews, 
5  S.  &  R.  374,  1819;  Gordon  v.  Gordon,  208  Pa.  186,  1904;  Fay  v.  Fay, 
27  Pa.  Super.  328,  1905;   (c)  but  great  weight  will  be  given  to  ap- 
proval of  master's  findings,  after  careful  scrutiny  of  evidence  and 
report,  by  court  below:  Edgar  v.  Edgar,  23  Pa.  Super.  220,  1903; 
King  v.  King,  36  Pa.  Super.  33,  1908.     For  further  cases,  see  §228. 

122 


STATUTORY  PROCEEDINGS. 


§§  48-101]        Divorce— Domestic  Attach.— Elections      §  61,  (2)  (d) -§§  62,  63 

note  (18)  (b2)  to  (e2).  (d)  The  appellate  court  has  jurisdiction,  under 
Act  May  20,  1891,  §1,  P.  L.  101,  (§74,  below),  to  review  decree  dis- 
missing petition  to  revoke  final  decree  in  divorce,  but  will  reverse 
only  when  there  has  been  clear  abuse  of  discretion:  Given  v.  Given, 
25  Pa.  Super.  467, 1904;  (e)  prior  to  that  act  there  was  no  jurisdiction 
to  review  order  vacating  decree :  Allen  v.  Maclellen,  12  Pa.  328,  1850 ; 
except  after  death  of  libellant:  Boyd's  Ap.,  38  Pa.  241,  1861; 
(f)  court  will  not  remit  case  to  secure  after-discovered  evidence 
which  is  merely  cumulative :  Hartje  v.  Hartje,  35  Pa.  Super.  14,  1908. 
(3)  Jurisdiction  on  Appeal.  Jurisdiction  on  appeal  in  divorce  is 
now  exclusively  in  Superior  Court.  See  §113. 

§62.  Domestic  Attachment.  Any  person  aggrieved  by 
any  definite  (definitive)  decree  of  any  court  of  common 
pleas  in  any  case  of  domestic  attachment,  as  aforesaid, 
[where  the  debtor  has  absconded  or  concealed  himself  with 
intent  to  defraud  creditors]  may  appeal  from  the  same  to 
the  Supreme  (or  Superior)  Court  in  the  proper  district. 
Act  June  13,  1836,  §43,  P.  L.  606,  i  Purd.  1269,  pi.  16. 

(1)  No  Appeal  Prior  to  Act.    Prior  to  this  act  there  was  no  appeal 
in  proceedings  in  domestic  attachment:  Lewis  v.  Wallick,  3  S.  &  R. 
410, 1817. 

(2)  Superior  Court.    For  jurisdiction  of  Superior  Court,  see  Chap- 
ter VI,  §108  et  seq.,  below. 

§63.  Elections  -  (A)  Nomination  or  Election  Ex- 
penses— Audit  of  Account.  The  decision  of  the  court  [of 
quarter  sessions]  upon  the  audit  [of  an  account  of  nomi- 
nation or  election  expenses]  shall  be  subject  to  appeal. 
Act  March  5,  1906,  §10,  P.  L.  78,  5  Purd.  5449,  pi.  89. 

— (B)  Contest — Judiciary — Constitutional  Question  In- 
volved. When  the  election  of  a  Judge  of  the  Supreme 
Court,  or  a  judge  of  any  subordinate  court  of  record,  re- 
quired to  be  learned  in  the  law,  shall  be  contested,  if  the 
trial  and  determination  of  such  election  contest  shall  in- 
volve the  true  construction  of  any  provision  of  the  Consti- 

123 


SPECIAL  JURISDICTION  AND  PARTIES. 


§63  Elections  [Chap.  5, 

tution,  or  if  the  decision  shall  depend  on  any  question  aris- 
ing upon  the  Constitution,  an  appeal  shall  lie  from  the  de- 
cision of  the  court  or  judges  empowered  to  try  such  con- 
tested election  to  the  Supreme  Court.  Act  June  12,  1878, 
§i,  P.  L.  204,  2  Purd.  1386,  pi.  351 ;  2034,  pi.  17. 

(C)  Parties  —  Filing  and  Hearing  Appeals.    Such 

appeal  may  be  taken  by  any  person  whose  right  to  the  office 
was  tried  and  determined,  or  by  any  person  aggrieved  by 
the  decision,  within  thirty  days  after  the  decision  of  the 
judges  shall  have  been  entered  of  record  to  the  case  in  the 
court  of  common  pleas.  The  appeal  shall  be  filed  in  the 
prothonotary's  office  of  the  proper  district,  but  may  be 
heard  by  the  said  Supreme  Court,  in  any  district;  and  it 
shall  be  the  duty  of  said  Court  to  hear  and  decide  the 
same,  without  delay.  Act  June  12,  1878,  §2,  P.  L.  204,  2 
Purd.  1387,  pi.  352;  Id.  2034,  pi.  18. 

(D)  Decision  and  Certifying  same.  The  said  Supreme 

Court,  having  decided  the  constitutional  question  involved 
in  such  election  contest,  shall  thereupon  proceed  to  decide 
and  declare  which  of  the  candidates  voted  for  received  the 
greatest  number  of  legal  votes  and  is  entitled  to  the  office, 
and  shall  cause  their  decision  to  be  certified  to  the  secre- 
tary of  the  commonwealth.  Act  June  12,  1878,  §4,  P.  L. 
204,  2  Purd.  1387,  pi.  354;  Id.  2034,  pi.  20. 

—  (E)  Receiver  for  Vacant  Office — Account  of — Phila- 
delphia County.  Any  [person]  aggrieved  by  the  final  de- 
cree [of  the  court  of  common  pleas  on  the  account  of  a 
receiver  appointed  on  application  of  any  citizen  to  hold  all 
fees,  &c.,  of  a  contested  office  in  Philadelphia  county]  upon 
said  receiver's  account  may  appeal  therefrom,  as  in  other 
equity  proceedings.  Act  April  10,  1867,  §2,  P.  L.  1123,  2 
Purd.  1395,  pi.  377. 

124 


STATUTORY  PROCEEDINGS. 


§§48-101]  Escheat  §64 

(1)  Constitutional  Question  Necessary.  No  appeal  lies  from 
judgment  in  contested  judicial  election  unless  constitutional  ques- 
tion is  involved:  Lyon  v.  Dunn,  196  Pa.  90,  1900.  Jurisdiction  of 
court  is  limited  to  review  of  soundness  of  law  as  declared  by  court 
below  to  have  been  their  guide  in  reaching  their  decision,  and  does 
not  extend  to  review  of  judgment  of  court  on  weight  of  evidence  or 
facts  established  by  it  on  each  particular  item  or  vote  contested: 
Mitchell,  J.,  Id. ;  where  constitutional  questions  were  ruled  in  favor  of 
appellant,  appeal  will  be  quashed:  Id. 

§64.  Escheat.  —  (A)  Feigned  Issue — Writ  on  Excep- 
tions to  Rulings.  Whenever  any  proceedings  in  escheat 
shall  have  been  instituted  or  shall  be  pending  in  any  court 
of  this  commonwealth,  and  there  shall  be  any  disputed  fact 
or  facts  touching  said  escheat,  then,  and  in  that  case,  the 
said  court  shall,  upon  application  of  the  escheator,  or  any 
other  person  interested  or  claiming  to  be  interested  in  the 
said  proceedings,  prior  to  the  filing  of  a  finding  or  adjudi- 
cation therein,  frame  an  issue  or  issues  to  determine  said 
disputed  question  or  questions  of  facts;  which  said  issue  or 
issues  shall  be  tried  in  the  court  of  common  pleas  of  the 
same  county  in  which  the  proceedings  in  escheat  shall  have 
been  instituted,  and  shall,  if  necessary,  be  certified  to  said 
court  for  that  purpose.  In  cases  where  escheat  proceed- 
ings are  instituted  in  the  Supreme  Court,  such  issue  or 
issues  shall  be  certified  to,  and  shall  be  tried  by  the  court 
of  common  pleas  of  such  county  as  the  Supreme  Court  shall 
designate.  Any  party  to  said  issue  may,  upon  the  trial 
thereof,  except  to  the  ruling  of  the  court  upon  any  point 
of  evidence  or  of  law,  which  exception  shall  be  noted  by 
the  court  and  filed  of  record  in  the  cause;  and  a  writ  of 
error  to  the  Supreme  (or  Superior(?))  Court  may  there- 
upon be  taken  by  any  party  to  said  issue,  with  the  usual 
force  and  effect.  Act  May  2,  1889,  §9,  P.  L.  66,  2  Purd. 
1471,  pi.  12. 

125 


SPECIAL  JURISDICTION  AND  PARTIES. 


§§  64,  65  Escheats — Estates  Tail  [Chap.  5, 

—  (B)  Final  Adjudication — Appeal  by  Commonwealth 
or  any  person.     The  commonwealth  or  any  person  ag- 
grieved or  claiming  to  be  aggrieved  by  a  final  adjudication 
or  finding  in  escheat,  may  appeal  from  the  same  to  the  Su- 
preme (or  Superior(  ?))  Court.  Act  May  2,  1889,  §12,  P.  L. 
66,  2  Purd.  1472,  pi.  15. 

—  (C)  Traverse  by  Party  Without  Notice.    A  writ  of 
error  shall  lie  in  such  case  [on  traverse  within  three  years 
of  final  adjudication  by  one  interested  who  is  without  no- 
tice] to  the  Supreme  (or  Superior  (?))  Court  at  the  suit  of 
any  traverser  or  of  the  commonwealth.    Act  May  2,  1889, 
§22,  P.  L.  66,  2  Purd.  1473-4,  pi.  27. 

(1)  Supreme   Court — Jurisdiction.     Under  Act  of  May  5,  1899, 
§104,  below,  the  Supreme  Court  has  jurisdiction  of  appeals  regard- 
less of  the  amount  involved,  whenever  the  case  is  brought,  author- 
ized or  defended  by  the  attorney  general  in  his  official  capacity.  Where 
the  attorney  general  does  not  appear  in  the  case,  the  jurisdiction 
under  the  Act  of  1889,  above,  would  seem  to  depend  on  the  amount 
in  controversy. 

(2)  Pipe-Line  Companies.    For  escheat  and  forfeiture  by  quo  war- 
ranto  proceedings  of  pipe  line  companies  for  acquiring  control  of 
competing  lines,  see  §86  (B),  below. 

(3)  Telegraph  Companies.    For  escheat  and  forfeiture  by  quo  war- 
ranto  proceedings  of  telegraph  co'mpany  for  acquiring  control  of  com- 
peting line,  see  §95,  below. 

§65.  Estates  Tail — Barring.  It  shall  and  may  be  lawful 
for  any  person  or  persons  [in  proceedings  to  bar  estates 
tail  by  fine  and  common  recovery  in  the  court  of  common 
pleas]  either  by  appeal  or  writ  of  error,  as  the  case  may 
require,  to  seek  and  obtain  redress  against  any  error  or 
errors  which  have  happened  or  may  happen  in  any  such 
proceedings.  Act  January  27,  1750,  §2,  i  Sm.  L.  203,  2  Purd. 
1483,  pi.  2. 

126 


STATUTORY  PROCEEDINGS. 


§§48-101]  Executions  §66 

§66.  Executions  —  (A)  Sheriff's  Interpleader.  The 
judgment  recovered  [on  the  issue  in  a  sheriff's  inter- 
pleader] shall  be  subject  to  appeal  to  the  Supreme  Court 
or  Superior  Court  as  in  other  cases.  Act  May  26,  1897, 
§10,  P.  L.  95,  2  Purd.  1555-6,  pi.  80. 

—  (B)  Distribution  Without  Intervention  of  Jury.  Any 

person  aggrieved  by  the  decree  of  the  court  [of  common 
pleas  in  any  case  of  distribution  made  without  the  inter- 
vention of  a  jury],  may,  at  any  time  within  twenty  days 
thereafter,  appeal  from  the  same  to  the  Supreme  (or  Super- 
ior) Court.  Act  June  16,  1836,  §89,  P.  L.  755,  2  Purd.  1583, 

Pi-  154- 

-  (C)  Refusal  of  Issue  on  Distribution.  [On  applica- 
tion for  an  issue  on  the  distribution  of  money  arising  from 
sales  under  execution  or  orphans'  court  sales,  or  to  deter- 
mine the  validity  of  the  lien  of  a  purchaser  who  is  a  lien 
creditor,  the  court  of  common  pleas  shall  determine 
whether  such  issue  shall  be  granted],  subject  to  a  writ  of 
error  or  appeal  by  such  applicant,  if  the  issue  be  refused, 
in  like  manner  as  in  other  cases  in  which  such  writ  now 
lies.  Act  April  20,  1846  §2,  P.  L.  411,  2  Purd.  1579-80. 

Upon  a  writ  of  error  issued  as  aforesaid,  the  whole  record 
shall  be  returned,  and  it  shall  be  competent,  for  any  person 
aggrieved  by  the  decree  of  distribution,  to  take  exceptions 
thereto,  if  the  judgment  upon  such  issue  should  be  affirmed. 
Act  June  16,  1836,  §88,  P.  L.  755,  2  Purd.  1583,  pi.  153. 

-  (D)  Judgment  on  Issue.  The  judgment  upon  such 
issue  [directed  to  try  dispute  as  to  fact  connected  with  dis- 
tribution of  proceeds  of  sheriff's  sale]  shall  be  subject  to  a 
writ  of  error,  in  like  manner  as  other  cases  wherein  writs 
oi  error  now  lie.  Act  June  16,  1836,  §87,  P.  L.  755,  2  Purd. 
1581,  pi.  150. 

127 


SPECIAL  JURISDICTION  AND  PARTIES. 


§66(l)-(4)  Executions  [Chap.  5, 

(1)  Review  in  Interpleader  Under  Act  1897 — Abuse  of  Discretion, 
(a)  Under  Act  April  10,  1848,  §8,  P.  L.  450,  2  Purd.  1435,  pi.  6,  ex- 
tended throughout  the  state  by  Act  March  10,  1858,  P.  L.  91,  and  Act 
April  10,  1849,  §7,  P.  L.  619,  writ  of  error  did  not  lie  to  refusal  to 
direct  issue:  Bain  v.  Funk,  61  Pa.  185,  1869;   (b)   nor  to  award  of 
issue:  White  v.  Rech,  171  Pa.  82,  1895;  (c)  and  Act  of  1897  gives  no 
appeal  except  as  theretofore,  upon  points  arising  at  the  trial:  Book 
v.  Sharpe,  189  Pa.  44,  1899;  (d)  but  since  under  Act  1897,  claimant 
is  deprived  of  a  substantial  right  by  being  deprived  of  his  action 
against  the  sheriff,  he  is  a  party  aggrieved  by  discharge  of  rule  for 
issue,  and  may  appeal  where  abuse  of  discretion  of  court  below  is 
shown:  Book  v.  Sharpe,  189  Pa.  44,  1899;  Gillespie  v.  Agnew,  22  Pa. 
Super.  557,  1903;   (e)  it  seems  no  appeal  from  judgment  in  feigned 
issue  will  lie  until  after  final  decree  of  distribution:  Kimmel  v.  John- 
son, 18  Pa.  Super.  429,  1901. 

(2)  Review  Under  Acts  1836  and  1846.     (a)  Appeal  lies  from  re- 
fusal to  grant  issue:  Providence  Co.  v.  Chase,  108  Pa.,  319,  1885; 
Schwartz's  Ap.,  21  W.  N.  C.  246,  1888;  S.  C.  10  Sad.  80;  Moore  v. 
Dunn,  147  Pa.  359,  1892;  People's  Savings  Bank  v.  Hosier,  199  Pa. 
375,  1901;  (b)  from  decree  striking  off  issue:  Dormer  v.  Brown,  72 
Pa.  404,  1872;  (c)  from  judgment  on  feigned  issue:  Brown's  Ap.,  26 
Pa.  490,  1856;  Christophers  v.  Selden,  28  Pa.  165,  1857;  Brown  v. 
Parkinson,  56  Pa.  336,  1868;   (d)  but  appeal  does  not  lie  until  after 
final  decree  of  distribution:  Reed's  Ap.,  71  Pa.  378,  1872;  Providence 
Co.  v.  Chase,  108  Pa.  319,  1885;  Kimmel  v.  Johnson,  18  Pa.  Super. 
429,  1901. 

(3)  Scope  of  Act  of  1846.     (a)  The  Act  of  1846  above  is  a  gen- 
eral law  applying  to  all  executions :  Biddle  v.  King,  1  Phila.  394,  1852 ; 
(b)  but  does  not  apply  to  a  sale  at  the  instance  of  heirs  under  a  later 
act:  McCarron's  Est.,  (C.  P.)  15  W.  N.  C.  485,  1884;  (c)  there  must 
be  disputed  facts:  Russel  v.  Reed,  27  Pa.  166,  1856;  Robinson's  Ap., 
36  Pa.  811,  1859 ;   (d)   disputed  questions  of  law  are  not  sufficient : 
Souder's  Ap.,  57  Pa.  498,  1868;  (e)  allegations  of  fraud  are  sufficient: 
Schwartz's  Ap.,  21  W.  N.  C.  246,  1888;  Moore  v.  Dunn,  147  Pa.  359, 
1892;  (f)  but  plaintiff  must  be  connected  with  the  fraud:  Loeffler  v. 
Schmertz,  152  Pa.  615,  1893. 

(4)  Parties  to  Appeal     (a)  Lien  creditors  only  are  parties  inter- 
ested who  can  appeal  from  decree  of  distribution:  Smith  v.  Reiff, 
20  Pa.  364,  1853,  Shaw's  Ap.,  46  Pa.  407,  1864;  Housekeeper's  Ap., 
49  Pa.  141,  1865;   (b)  but  lien  creditor  who  fails  to  appeal  cannot 

128 


STATUTORY  PROCEEDINGS. 


§§48-101]  Feigned  Issue 


join  in  distribution  of  fund  raised  by  execution :  Cash 's  Ap.,  1  Pa.  166, 
1845;  (c)  record  may  be  brought  up  by  appeal  or  certiorari:  Tryon  v. 
Cadwaledar,  3  Luz.  L.  Ob.  230,  1863. 

(5)  Joint  Appeals  not  Allowed.    Although  several  feigned  issues 
awarded  in  distribution  of  same  fund,  are  tried  together  before  one 
jury,  separate  appeals  must  be  taken  from  judgments  therein:  Kim- 
mel  v.  Johnson,  18  Pa.  Super.  429,  1901. 

(6)  Time  for  Appeal,    (a)  The  Act  of  May  19, 1897,  (§126,  below), 
gives  the  right  to  appeal  from  any  order,  judgment,  or  decree,  within 
six  months  from  date  of  entry;  (b)  appeal  taken  before  judgment  is 
entered  on  verdict  will  be  quashed:  Kimmel  v.  Johnson,  18  Pa.  Super. 
429,  1901. 

(7)  Superior  Court.    For  jurisdiction  of  Superior  Court,  see  Chap- 
ter VI,  §108  et  seq.,  below. 

§67.  Feigned  Issue — (A)  Appeal  from  Final  Judgment 
or  Decree  Preserved.  In  cases  of  feigned  issues  heretofore 
or  yet  to  be  tried,  when  exceptions  have  been  or  shall  be 
taken  to  the  rulings  or  charge  of  the  court,  a  writ  of  error 
may  be  taken  without  prejudice  to  the  right  of  appeal  on 
final  judgment  or  decree.  Act  February  12,  1869,  §i,  P.  L. 
3,  2  Purd.  1436,  pi.  10. 

—  (B)  Directed  by  Orphans'  Court.  In  all  cases  where 
a  feigned  issue  has  been  or  hereafter  may  be  directed  by 
the  orphans  court,  a  writ  of  error  shall  be  in  the  same 
manner  as  in  cases  where  feigned  issues  are  directed  by  the 
court  of  common  pleas,  and  shall  embrace  all  causes  now 
pending  on  writ  of  error  in  the  Supreme  Court  or  other- 
wise. Act  April  10,  1848,  §8,  P.  L.  450,  2  Purd.  1435,  pi.  6. 

(1)  Review — When  Writ  Lies,  (a)  A  writ  of  error  to  a  feigned 
issue  brings  up  only  the  record  of  the  trial :  Gallagher  v.  Stewart,  34 
Leg.  Int.  232,  1876;  (b)  antecedent  matters  in  the  proceeding  out  of 
which  the  issue  arose  can  only  be  reviewed  after  final  decree:  Mc- 
Farland  v.  Clark,  4.  W.  N.  C.  250, 1877;  (c)  a  writ  should  not  be  taken 
to  a  judgment  as  one  issue  where  there  are  other  issues  not  to  be  tried: 
Schriver  v.  Eckenrode,  94  Pa.  456, 1880 ;  (d)  and  where  a  feigned  issue 
is  awarded  as  ancillary  to  a  suit  or  proceeding,  the  judgment  in  such 

129 


SPECIAL  JURISDICTION  AND  PARTIES. 


§  68  Foreign  Attachment  [Chap.  5, 

issue  cannot  be  reviewed  by  writ  of  error  until  after  final  judgment 
or  decree  in  the  principal  cause:  Cake  v.  Cake,  106  Pa.  472,  1884;  (e) 
error  will  not  lie  to  a  feigned  issue  to  determine  proceeds  of  a  sheriff's 
sale  until  after  decree  of  distribution  is  entered  on  the  judgment : 
Reed's  Ap.,  71  Pa.  378,  1872;  Knebel  v.  Baumgarden,  1  Leg.  Eec.  137, 
1879;  see  also  §66,  n  (2)  (d) ;  (f)  the  Act  of  1848  does  not  take  away 
right  to  writ  on  final  decree:  Hallowell's  Ap.,  20  Pa.  215,  1852;  Fin- 
ney's  Ap.,  37  Pa,  323, 1860;  (g)  and  separate  writs  may  be  taken  from 
judgment  in  feigned  issue  and  from  final  decree:  Shiffer's  Ap.,  4 
Penny.  512,  1884;  (h)  on  review  of  final  decree,  entire  proceedings, 
including  trial  of  feigned  issue,  may  be  examined:  Hallowell's  Ap., 
20  Pa.  215,  1852;  Finney's  Ap.,  37  Pa.  323,  1860;  (i)  but  writ  is  pre- 
mature until  after  final  judgment  or  decree  in  principal  cause:  Green 
v.  Mills,  103  Pa.  22, 1883;  Cake  v.  Cake,  106  Pa.  472,  1884. 

(2)  Other  Cases  of  Feigned  Issue.  For  the  right  of  review  in  other 
cases  of  feigned  issue,  see  under  appropriate  subjects  in  this  chapter. 

§68.  Foreign  Attachment — Judgment  for  One  of  Sev- 
eral Defendants — Attachment  Against  Others  Dissolved — 
Review  by  Plaintiff.  If  any  such  defendants  [in  attach- 
ment and  summons  where  two  or  more  persons  shall  be 
jointly,  but  not  severally,  liable  to  the  suit  of  another,  if 
one  or  more  of  such  persons  shall  be  liable  to  process  of 
attachment  and  another  or  others  of  them  shall  not  be 
liable  to  such  process]  against  whom  a  summons  shall 
issue  as  aforesaid,  shall  plead  any  plea  in  bar  of  the  whole 
action,  in  the  manner  and  form  in  which  it  is  brought,  and 
a  verdict  and  judgment  absolute  thereon  be  rendered  for 
such  defendant,  the  attachment  against  the  other  defen- 
dant shall,  upon  the  motion  of  any  person  interested,  be 
dissolved,  and  the  goods  and  effects  thereby  bound  shall 
be  discharged,  unless  the  plaintiff  shall,  within  a  year  and 
a  day  thereafter  sue  out  and  prosecute  a  writ  of  error  (ap- 
peal) to  revise  such  judgment,  and  in  the  meantime,  and 
until  such  judgment  be  reversed,  no  further  proceedings 
shall  be  had  upon  any  judgment  which  may  have  been  ren- 

130 


STATUTORY  PROCEEDINGS. 


§§48-101]      Gas  and  Water  Cos. — Ground  Rents — Injunctions          §§69-71 

dered  against  any  defendant  attached.    Act  June  13,  1836, 
§75,  P.  L.  568,  2  Purd.  1729,  pi.  50. 

(1)  Time  for  Appeal.  Time  limit  for  appeal  is  six  months  by  Act 
May  19,  1897.  (See  §126,  below). 

§69.  Gas  and  Water  Companies — Impurity  or  Defici- 
ency. Either  party  may  appeal  [from  the  decree  of  the 
court  of  common  pleas  in  proceedings  under  complaint  of 
impurity  or  deficiency  of  gas  or  water]  to  the  Supreme 
(or  Superior)  Court  as  in  cases  in  equity.  Act  June  10, 
1881,  §3,  P.  L.  112,  2  Purd.  1791,  pi.  30. 

(1)  Superior  Court.  For  jurisdiction  of  Superior  Court,  see  Chap- 
ter VI,  §108  et  seq.,  below. 

§70.  Ground-Rents — Proceedings  to  Extinguish.  Any 
party  aggrieved  by  the  judgment  of  the  court  [of  com- 
mon pleas  in  proceedings  to  extinguish  ground-rents]  may 
appeal  thereupon  to  the  Supreme  Court  or  Superior  Court 
as  in  other  cases.  Act  June  14,  1897,  §5,  P.  L.  149,  2  Purd. 
1809,  pi.  19. 

§71.  Injunctions  —  Special  or  Preliminary.  (A)  Grant- 
ing— Hearing.  In  all  cases  in  equity  in  which  a  special 
injunction  has  been  or  shall  be  granted  by  any  court  of 
common  pleas  ....  an  appeal  to  the  Supreme  (or 
Superior)  Court  for  the  proper  district  shall  be  allowed 
.  .  .  .  and  all  such  appeals  shall  be  heard  by  the  Su- 
preme (or  Superior)  Court  in  any  district  in  which  it  may 
be  in  session,  as  is  provided  in  cases  in  equity  originating 
in  the  Supreme  Court.  Act  February  14,  1866,  §i,  P.  L. 
28,  2  Purd.  1424,  pi.  53. 

(B)  Refusing  —  Hearing  —  Practice  on  Appeal. 

In  all  cases  in  equity  in  which  a  special  or  preliminary  in- 
junction has  been  refused  by  any  court  of  common  pleas, 


SPECIAL  JURISDICTION  AND  PARTIES. 


§  71  Injunctions  [Chap.  5, 

an  appeal  to  the  Supreme  (or  Superior)  Court  for  the 
proper  district  shall  be  allowed.  .  .  .  And  all  such 
appeals  shall  be  heard  by  the  Supreme  (or  Superior)  Court 
in  any  district  in  which  it  may  be  in  session,  as  is  pro- 
vided in  cases  in  equity  originating  in  the  Supreme  Court. 
Act  June  12,  1879,  I1*  P-  L.  177,  2  Purd.  1425,  pi.  54. 

•  In  all  appeals  under  this  act,  only  such  bills,  answers  and 
affidavits  as  shall  be  certified  by  the  judge  or  judges  of  the 
lower  court,  as  having  been  before  said  court  at  the  hear- 
ing for  injunction,  shall  be  considered  by  the  Supreme  (or 
Superior)  Court;  and  all  cases  shall  be  heard  and  deter- 
mined as  though  said  court  had  original  jurisdiction  in  the 
premises,  and  the  application  for  injunction  had  been  made 
to  said  court.  Act  June  12,  1879,  §2,  P.  L.  177,  2  Purd. 
1425,  pi.  55- 

(1)  When  Appeal  Lies — Review,  (a)  Decree  granting  injunction 
and  appointing  receiver  is  a  unit,  and  appeal  will  lie  from  it: 
Schlecht's  Ap.,  60  Pa.  172,  1869;  Haught  v.  Irwin,  166  Pa.  548,  1895; 

(b)  order  appointing  receiver  is  in  effect  an  injunction,  from  which 
appeal  may  be  taken:  Schlecht's  Ap.,  60  Pa.  172,  1869;  New  Castle 
&c.  R.  R.'s  Ap.,  3  Walk.  281, 1880;  Treat  v.  Ins.  Co.,  199  Pa.  326, 1901; 

(c)  ordinarily  appellate  court  will  only  review  abuse  of  discretion  in 
appointing  or  removing  receiver:  Beaumont  v.  Beaumont,  166   Pa. 
615,  1895;  (d)  the  appeal  will  be  dismissed  unless  it  is  clearly  shown 
that  great  injustice  will  be  done  appellant  by  continuing  the  injunc- 
tion: Snyder  v.  Brown,  197  Pa.  450,  1900;  (e)  action  of  court  below 
will  not  be  interfered  with  unless  clearly  erroneous  and  immediately 
injurious  to  appellant:  Western  N.  Y.,  &c.,  Ry.  v.  Ry.,  193  Pa.  127, 
1899;  Deemer  v.  R.  R.,  212  Pa.  491,  1905;  (f)  pendency  of  appeal  does 
not  suspend  proceedings  in  original  suit,  and  where  there  has  been 
ample  time,  pending  appeal  from  order  granting  or  refusing  pre- 
liminary injunction,  to  procure  final  decree,  and  there  are  disputed 
facts,  appellate  court  will  not  interfere:  Sheaffer's  Ap.,  100  Pa.  379, 
1882;  Gyger's  Ap.,  15  W.  N.  C.  513,  1885;  Rudy  v.  My  ton,  19  Pa. 
Super.  319,  1902;   (g)  the  merits  will  not  be  examined  further  than 
necessary  to  determine  propriety  of  injunction  at  that  stage  of  the 

132 


STATUTORY  PROCEEDINGS. 


§§48-101]  Insolvency — Insurance  Companies  §§72,73 

case:  Bryner  v.  Bridge  Co.,  190  Pa.  617,  1899;  Delaware  &  Hudson 
Co.  v.  Boro.,  224  Pa.  387,  1909;  Ross  Water  Co.  v.  Water  Co.,  228 
Pa.  235,  1910;  North  Shore  R.  R.  v.  Penna.  Co.,  231  Pa.  307,  1911; 
(h)  under  Act  of  1866  no  appeal  lay  to  refusal  to  grant  preliminary 
injunction;  such  right  was  first  given  by  Act  of  1879;  Hilbish  v.  Cath- 
erman,  60  Pa.  444,  1869:  (i)  no  appeal  lies  from  order  continuing 
hearing  on  motion  to  dissolve  preliminary  injunction  and  giving  leave 
to  plaintiff  to  file  answer:  Caflisch  v.  Logue,  216  Pa.  146,  1907. 

(2)  Appeal  Certified  to  Any  District.    Appeal  may  be  certified  by 
prothonotary  to   any   district   where   appellate   court   is  in   session, 
where  it  will  be  placed  on  regular  list  and  heard  when  reached  in 
order:  Kraft's  Ap.,  94  Pa.  449,  1880. 

(3)  Superior  Court.    For  jurisdiction  of  Superior  Court,  see  Chap- 
ter VI,  §108  et  seq.,  below. 

(4)  Injunctions  Generally.    For  appeals  in  injunctions  generally 
see  §44  and  notes. 

(5)  Practice  on  Appeal.    For  practice  as  to  bail,  supersedeas  and 
costs,  see  §48  (D),  above. 

§72.  Insolvency — Final  Order — Order  Resulting  in 
Imprisonment.  Any  final  judgment,  order  or  decree,  or 
any  order  or  decree  resulting  in  imprisonment,  made  under 
the  provisions  of  this  act  [relating  to  insolvency]  may  be 
appealed  from  to  the  Supreme  or  Superior  Court,  as  in 
other  cases.  Act  June  4,  1901,  §39,  P.  L.  404,  2.  Purd.  1934, 

Pi-  139- 

(1)  Banks.  For  proceedings  by  assignee  in  case  of  fraudulent 
insolvency  of  bank,  see  §55,  above. 

§73.  Insurance  Companies — Insolvency — Fraud.  With- 
in three  months  after  the  date  of  any  decree,  either  dissolv- 
ing or  continuing  an  insurance  corporation  [in  proceedings 
in  the  court  of  common  pleas  by  the  attorney  general  in 
cases  of  alleged  insolvency  or  fraudulently  conducted  in- 
surance companies]  either  party  to  the  proceeding  may 
take  an  appeal  to  the  Supreme  Court,  which  shall  be  heard 

133 


SPECIAL  JURISDICTION  AND  PARTIES. 


§74  (1)  (a)-(e)  Judgments — Opening,    etc.  [Chap.  5, 

and  determined  by  said  court  as  appeals  in  equity  cases 
are  now  heard  and  determined.  Act  May  i,  1876,  §52,  P. 
L.  53,  2  Purd.  1952,  pi.  61. 

(1)  Time  for  Appeal.  Time  limit  for  appeal  is  six  months  by 
Act  May  19, 1897.  See  §126,  below. 

§74.  Judgments — Opening,  Vacating  or  Striking  Off  or 
Refusing  Same.  In  all  cases  of  application  for  the  open- 
ing, vacating  and  striking  off  of  judgments  of  any  kind, 
whether  entered  by  amicable  confession,  upon  warrant  of 
attorney  or  otherwise,  any  party  aggrieved  by  the  decision 
of  the  court  opening,  vacating  or  striking  off,  or  the  refusal 
to  open,  vacate  or  strike  off  such  judgment,  may  appeal 
therefrom  to  the  Supreme  (or  Superior)  Court  of  this 
commonwealth,  and  such  cause  shall  thereupon  be  heard, 
reviewed  and  decided  upon  such  appeal  by  the  Supreme 
(or  Superior)  Court  in  like  manner  as  appeals  from  final 
decrees  to  the  said  Supreme  Court.  Act  May  20,  1891,  §i, 
P.  L.  101,  2  Purd.  1438,  pi.  14. 

(1)  Scope  of  Act.  (a)  This  act  does  not  extend  power  of  com- 
mon pleas,  but  merely  extends  right  to  appeal:  Pennock  v.  Kennedy, 
153  Pa.  579,  1893;  (b)  it  was  not  intended  to  give  two  opportunities 
for  reversal:  Mayer  v.  Brimmer,  15  Pa.  Super.  451,  1900;  American 
Soda  Water  Co.  v.  Taggart,  46  Pa.  Super.  123,  1911;  (c)  a  plaintiff 
may  at  his  option  take  appeal  under  this  act  within  six  months,  or 
wait  until  the  issue  is  tried  and  final  judgment  is  entered,  when  all 
matters  can  be  considered  in  one  appeal;  the  latter  course  is  to  be 
commended  as  it  saves  two  appeals  in  the  same  case:  Schomaker  v. 
Dean,  201  Pa.  439,  1902 ;  American  Soda  Water  Co.  v.  Taggart,  46  Pa. 
Super.  123,  1911;  (d)  prior  to  Act  of  1891,  appeal  lay  from  decision 
of  court  on  application  to  have  any  judgment  entered  by  virtue  of 
warrant  of  attorney  or  on  judgment  note  opened  and  defendants  let 
into  a  defense :  Act  April  4,  1877,  P.  L.  53,  1  Purd.  1437,  pi.  13 ;  (e) 
under  latter  act  appeal  did  not  lie  from  refusal  to  open  judgment 
entered  by  amicable  agreement :  Lamb 's  Ap.,  89  Pa.  407,  1879 ;  Jones 's 
Ap.,  1  Walk.  355, 1881;  First  Nat.  Bank's  Ap.,  106  Pa.  68,  1884;  Kerr 

134 


STATUTORY  PROCEEDINGS. 


§§48-101]  Judgments— Opening,  etc.  §  74  ( 1)  (f )-(s) 

v.  Wonderlich,  7  Sad.  1,  1887;  Limbert  v.  Jones,  118  Pa.  589,  1888; 
Blythe  Twp.  v.  Morris,  9  Sad.  515,  1888;  (f)  nor  under  agreement  for 
ejectment  in  lease :  Lambert  v.  Jones,  118  Pa.  589,  1888 ;  Swartz  's  Ap., 
119  Pa.  208,  1888;  Dikeman  v.  Butterfield,  135  Pa.  236,  1890;  (g) 
nor  on  verdict  of  jury:  Gaskill  v.  Crawford,  130  Pa.  28,  1889;  (h)  nor 
on  judgment  confessed  in  adverse  proceedings;  Maneval  v.  Jackson 
Twp.,  141  Pa.  426,  1891;  (i)  nor  from  order  opening  confessed  judg- 
ment, staying  execution  and  directing  issue:  Citizens'  B.  &  L.  Asso. 
v.  Hoagland,  87  Pa.  326,  1878;  English's  Ap.,  119  Pa.,  533,  1888; 
Jenkintown  Nat.  Bank's  Ap.,  124  Pa.  337,  1889;  (j)  under  Act  of 
1891,  appeal  lies  from  refusal  to  open  judgment  entered  for  want  of 
appearance:  Kelber  v.  Plow  Co.,  146  Pa.  485,  1892;  (k)  of  ouster  in 
quo  warranto  proceedings:  Com.  v.  O'Donnel,  188  Pa.  23,  1898;  (1) 
entered  under  agreement  for  ejectment  in  lease:  Duffy  v.  Kaufman, 
18  Pa.  Super.  362, 1901 ;  (m)  in  divorce :  Given  v.  Given,  25  Pa.  Super. 
467,  1904 ;  (n)  from  refusal  to  take  off  a  non-suit :  Harvey  v.  Pollock, 
148  Pa.  534, 1892;  (o)  but  right  of  appeal  is  not  extended  to  judgment 
in  application  to  stay  or  set  aside  an  execution,  based  on  facts  out- 
side the  record:  Stephens  v.  Addis,  19  Pa.  Super.  185,  1902;  Hanscom 
v.  Chipin,  27  Pa.  Super.  546,  1905;  (p)  agreement  in  lease  expressly 
waiving  right  to  writ  of  error,  objection  or  exception,  will  be  enforced, 
and  appeal  from  refusal  to  open  judgment  of  ejectment  entered  under 
lease,  will  be  quashed:  Groll  v.  Gegenheimer,  147  Pa.  162,  1892;  Sea- 
grave  v.  Lacy,  28  Pa.  Super.  586,  1905;  (q)  for  right  of  appeal  from 
refusal  to  open  judgment  in  mechanic's  and  municipal  liens,  see  §78 
and  §79,  below ;  (r)  appellate  court  will  not  open,  because  of  invalidity 
of  tax  lien,  a  judgment  entered  on  sci.  fa.  to  collect  taxes  where  lien 
is  expired:  Philadelphia  v.  Kates,  150  Pa.  30,  1892;  (s)  under  Act 
April  4,  1877,  P.  L.  53,  an  application  to  open  judgment  was  addressed 
to  the  equitable  powers  of  the  court,  and  the  question  was  whether 
lower  court  rightly  exercised  its  discretion.  The  enlarged  powers  con- 
ferred by  Act  of  1891  are  to  be  construed  and  exercised  as  were  those 
given  by  Act  of  1877,  and  appellate  court  will  not  reverse  except  in 
clear  cases  of  abuse  of  discretion :  Kelber  v.  Pittsburgh  National  Plow 
Co.,  146  Pa.  485,  1892;  Com.  v.  Titman,  148  Pa.  168,  1892;  Phila.  v. 
Kates,  150  Pa.  30,  1892;  Fisher  v.  King,  153  Pa.  3,  1893;  Walter  v. 
Fees,  155  Pa.  55,  1893;  Phila.  v.  Weaver,  155  Pa.  74,  1893;  Duane  v. 
Addicks,  155  Pa.  124,  1893;  Pfaff  v.  Thomas,  3  Pa.  Super.  419,  1897; 
Stephen  v.  Hudock,  4  Pa.  Super.  474,  1897;  Renwick  v.  Richardson,  5 

135 


SPECIAL  JURISDICTION  AND  PARTIES. 


§  75  Labor  Claims  [Chap.  5, 

Pa.  Super.  202,  1897;  Leader  v.  Dunlap,  6  Pa.  Super.  243,  1898;  Koch 
v.  Biesecker,  7  Pa.  Super.  37,  1898;  Mullet  v.  Hensel,  7  Pa.  Super. 
524,  1898;  Steel  Iron  Co.  v.  Jacobs,  9  Pa.  Super.  122,  1898;  Walsh  v. 
Ashford,  9  Pa.  Super.  566,  1899;  Kistler  v.  Scheirer,  10  Pa.  Super. 
220,  1899;  Freeman  v.  Sanner,  11  Pa.  Super.  42,  1899;  Blauvelt  v. 
Kemon,  196  Pa.  128, 1900;  Com.  v.  Mellet,  196  Pa.  243, 1900;  Green  v. 
Boyd,  13  Pa.  Super.  651,  1900;  Rhem  v.  Frank,  16  Pa.  Super.  175, 
1901;  Duffy  v.  Kaufman,  18  Pa.  Super.  362,  1901;  Whitecar  v.  Su- 
preme Castle,  18  Pa.  Super.  631,  1902;  Kaier  Co.  v.  O'Brien,  202  Pa. 
153,  1902;  Hirschlan  v.  Krechman,  20  Pa.  Super.  227,  1902;  Zartman 
v.  Spangler,  21  Pa.  Super.  647,  1902;  Gottleib  v.  Middleberg,  23  Pa. 
Super.  525,  1903;  Fryberger  v.  Hotter,  24  Pa.  Super.  317,  1904;  Given 
v.  Given,  25  Pa.  Super.  467,  1904;  Augustine  v.  Wolf,  215  Pa.  558, 
1906;  Doyle  v.  Reiter,  32  Pa.  Super.  251,  1906;  Raeder  v.  Monks,  228 
Pa.  269,  1910.  (t)  But  where  the  judgment  is  based  on  an  erroneous 
deduction  from  facts  found,  it  is  subject  to  revision  and  correction: 
Woodward  v.  Carson,  208  Pa.  144,  1904.  For  additional  cases,  see 
§228,  note  (24)  (z3). 

(2)  Superior  Court.    For  jurisdiction  of  Superior  Court,  see  Chap- 
ter VI,  §108  et  seq.,  below. 

(3)  Judgments  Non  Obstante  Veredicto.     For  appeal  from  judg- 
ments n.  o.  v.,  see  §88  (C). 

(4)  Entry  of  Judgment  without  Return  of  Record,   etc.       For 
power  of  appellate  court  to  enter  judgment  without  return  of  record, 
etc.,  under  §2  of  Act  of  1891,  above,  see  §228,  notes  (l)-(5),  below. 

§75.  Labor  Claims — Joint  Appeals — Hearing.  Here- 
after in  all  contests  over  labor  claims  in  cases  of  distribu- 
tion under  the  Acts  of  Assembly  of  April  22,  1854,  P.  L. 
480,  [4  Purd.  5051,  pi.  21,  relating  to  preference  of  wages 
in  cases  of  assignment]  and  May  12,  1891,  P.  L.  54,  [4 
Purd.  5051,  pi.  9,  relating  to  preference  of  wages  in  cases 
of  distribution]  and  their  supplements,  any  two  or  more  of 
such  labor  claimants  may  join  in  taking  an  appeal  to  the 
proper  appellate  court  from  any  judgment  or  decree  of  the 
court  below  adverse  to  their  said  claims,  and  may  file  either 
joint  or  several  assignments  of  error  on  such  appeal  as  the 

136 


STATUTORY  PROCEEDINGS. 


§§48-101]  Lunatics  and  Habitual  Drunkards  .      §76 

nature  of  the  case  may  require.  And  on  the  hearing  of 
such  appeal  the  appellate  court  shall  determine  the  rights 
of  the  several  parties,  respectively,  in  the  same  manner  as 
the  said  court  might  do  if  the  court  below  had  decided  in 
favor  of  said  claimants,  and  the  execution  creditor  or  other 
person  claiming  adversely  to  said  labor  claimants  had  taken 
the  appeal.  Act  June  15,  1897,  §i,  P.  L.  154,  2  Purd.  1440, 
pi.  21. 

(1)  Jurisdiction  on  Appeal.  The  Act  of  May  5,  1899,  §7,  P.  L. 
248,  2  Purd.  1442,  pi.  31,  provides  that  appeal  shall  be  taken  to  the 
Superior  Court.  See  §114. 

§76.  Lunatics  or  Habitual  Drunkards —  (A)  Supersed- 
ing Commission.  Nothing  in  this  act  [a  supplement  to  the 
Act  of  June  13,  1836,  §63,  providing  that  the  court  of  com- 
mon pleas  shall  when  demanded  by  an  alleged  lunatic  or 
habitual  drunkard,  direct  an  issue  and  jury  trial  according 
to  the  course  of  the  common  law  in  which  the  verdict,  if  in 
favor  of  the  petitioner,  shall  be  conclusive,  but  if  against 
the  petitioner,  advisory  only;  and  when  the  petitioner  does 
not  demand  a  jury  trial  the  court  shall  take  proofs  and  in 
proper  cases  make  an  order  to  supersede  the  proceedings] 
shall  be  so  construed  as  taking  away  the  right  of  appeal 
as  at  common  law.  Act  June  15,  1897,  §13,  P.  L.  162,  2 
Purd.  2406,  pi.  91. 

— (B)  Maintenance,  etc.,  of  Lunatics.  From  any  order, 
final  or  otherwise,  thus  made  [for  maintenance,  custody, 
care  or  disposition  of  a  lunatic  or  his  property]  an  appeal 
may  be  taken  to  the  Supreme  (or  Superior)  Court.  Act 
May  8,  1883,  §39,  P.  L.2I,  2  Purd.  2392.  pi.  18. 

(1)  Weak-minded  Persons.    For  review  of  proceedings  relating  to 
weak-minded  persons,  see  §101. 

(2)  No  Review  on  Merits  in  Appellate  Court.    Under  Act  of  1897 
there  is  no  provision  for  bringing  evidence  on  inquisition  in  lunacy 

137 


SPECIAL  JURISDICTION  AND  PARTIES. 


§77  Mandamus  [Chap.  5, 

on  the  record  by  bill  of  exception  or  otherwise,  and  therefore  no  power 
of  review  on  merits;  party  aggrieved  by  finding  must  pursue  statu- 
tory remedy  by  traverse  under  Act  May  8,  1874,  P.  L.  122,  2  Purd. 
2393,  pi.  19:  Weaver's  Case,  116  Pa,  225,  1887;  Com.  v.  Harrold,  204 
Pa.  154,  1902. 

(3)  Practice  on  Appeal.    For  practice  as  to  bail,  supersedeas  and 
costs,  see  §48  (D),  above. 

(4)  Superior   Court — Jurisdiction.     For  jurisdiction   of   the   Su- 
perior Court,  see  Chapter  VI,  §108  et  seq.,  below. 

§77.  Mandamus  —  Practice  —  Supersedeas  —  Juris- 
diction —  Review.  The  party  aggrieved  by  the  proceed- 
ings had  in  any  court  of  common  pleas  upon  any  writ  of 
mandamus  may  remove  the  same  at  any  time  within 
twenty  days  after  final  judgment,  order,  decree,  or  in  cases 
where  the  granting  of  said  writ  is  required  by  the  first 
section  of  this  act,  at  any  time  within  twenty  days  after 
refusal  to  grant  said  writ,  into  the  Supreme  (or  Superior) 
Court  by  appeal  as  in  other  actions  at  law,  and  such  appeal 
shall  supersede  any  peremptory  writ  by  the  court  and  also 
any  execution  for  damages  or  costs,  upon  bail  to  be  given 
as  in  other  civil  cases.  Act  June  8,  1893,  §29,  P.  L.  348,  3 
Purd.  2431,  pi.  29. 

Such  appeal  shall  also  supersede  any  peremptory  writ  is- 
sued within  twenty  days  after  final  judgment,  order  or  de- 
cree: Provided,  however,  That  the  certiorari  in  conse- 
quence of  such  appeal  be  lodged  in  the  office  of  the  pro- 
thonotary  of  the  court  awarding  the  writ  before  the  man- 
date thereof  shall  have  been  fully  complied  with :  Provided, 
further,  That  said  appeal  shall  be  made  returnable  forth- 
with. Act  June  8,  1893,  §30,  P.  L.  349,  3  Purd.  2431, 
pi.  30. 

Every  such  appeal  may  be  made  returnable  forthwith, 
and,  if  thus  made  returnable,  it  shall  be  heard  and  decided 
by  the  Supreme  (or  Superior)  Court  in  any  district  in 

138 


STATUTORY  PROCEEDINGS. 


§§48-101]  Mandamus  §  77  (1)  (a)-(c) 

which  it  may  be  in  session,  as  in  this  act  provided  in  cases 
originating  in  said  court,  and  if  not  thus  returnable  it 
shall  be  heard  and  decided  by  said  court  when  in  session 
in  the  proper  district  at  the  term  to  which  it  shall  have 
been  made  returnable.  Act  June  8,  1893,  §31,  P.  L.  349,  3 
Purd.  2431,  pi.  30. 

The  Supreme  Court  in  any  district  shall  exercise, 
throughout  the  state,  original  jurisdiction  in  the  cases 
authorized  by  the  organic  law  of  the  state,  and  if  not 
decided  before  the  close  of  its  session  in  said  district 
shall  cause  the  same  to  be  certified  to  and  filed  for  action 
with  the  prothonotary  of  said  court  in  the  district  within 
which  it  shall  be  next  in  session,  and  so  to  be  certified 
from  district  to  district  until  finally  decided.  Act 
June  8,  1893,  §32,  P.  L.  345,  3  Purd.  2431,  pi.  32. 

The  Supreme  (or  Superior)  Court  in  such  cases  shall 
dispose  of  all  issues  of  fact  arising  therein  in  such  manner 
as  may  be  deemed  just  and  reasonable,  and  shall  enter 
such  judgments,  orders  or  decrees  and  in  such  manner  and 
on  such  terms  as  to  it  may  seem  proper,  and  to  that  end 
may  make  all  necessary  rules  and  regulations.  Damages 
and  costs  allowed  by  this  act  and  awarded  by  the  Supreme 
(or  Superior)  Court  shall  be  recovered  in  the  manner  said 
court  may  direct.  Act  June  8,  1893,  §33,  P.  L.  345,  3  Purd. 

243 1,  pl- 33- 

(1)  Parties,  (a)  Under  Act  of  June  8,  1893,  §9  P.  L.  345,  3  Purd. 
2427,  pi.  9,  any  person  claiming  right  or  interest  in  the  subject  matter 
and  permitted  to  intervene,  may  appeal;  but  where  peremptory  man- 
damus has  been  awarded  against  a  public  officer  to  pay  salaries  due 
other  public  officers,  a  mere  private  citizen  cannot  file  a  bill  to  restrain 
enforcement  of  writ  and  payment  of  salaries:  Newlin  v.  Harris,  209 
Pa.  558,  1904;  (b)  a  county  cannot  intervene  in  proceedings  by  city 
to  compel  county  treasurer  to  pay  its  share  of  liquor  license  fees: 
Com.  v.  Martin,  170  Pa.  118,  1895;  (c)  a  township  is  a  party  inter- 
ested in  order  directing  supervisors  to  draw  on  treasurer  for  payment 

139 


SPECIAL  JURISDICTION  AND  PARTIES. 


§77  (1)  (c)-§78  (l)-(2)  (c)         Mechanics'  Liens  [Chap.  5, 

of  money:  Marcy  v.  Springville  Twp.,  24  Pa.  Super.  521,  1904.    For 
other  cases  on  parties  to  actions,  see  §43,  notes  (5),  (6)  and  (7). 

(2)  Time  for  Appeal.    Time  limit  for  appeal  is  six  months  by  Act 
May  19,  1897.    See  §126,  below. 

(3)  Superior  Court — Jurisdiction.    When  there  is  no  money  value 
involved,  appeal  lies  to  the  Supreme  and  not  to  the  Superior  Court; 
Com.  v.  O'Donnell,  7  Pa.  Super.  49,  1898;  Brower  v.  Kantner,  9  Pa, 
Super.  94,  1898;  Neubert  v.  Water  Co.,  26  Pa.  Super.  608,  1904.    See 
Chapter  VI,  §102  et  seq.,  for  general  review  of  law  governing  jurisdic- 
tion of  Supreme  and  Superior  Courts  in  appeals. 

(4)  Original  Jurisdiction.    See  §38  (A) . 

(5)  Practice  on  Appeal.    For  practice  as  to  bail,  supersedeas  and 
costs,  see  §48  (D),  above. 

(6)  Review  on  Appeal,     (a)  the  appellate  court  will  not  consider 
defenses  not  set  up  below:  Easton  Boro.  v.  Water  Co.,  97  Pa.  554, 
1881;    (b)    nor   will   it    consider   technical    objections    where    facts 
stated  in  the  return  are  admitted :  German  Reformed  Church  v.  Com., 
3  Pa.  282,  1846;  (c)  the  return  cannot  be  amended  in  the  appellate 
court:   Com.  v.  Phila.,  180  Pa.  12,  1897;    (d)   mandamus  issued  to 
enforce  a  judgment  will  be  reversed  where  judgment  is  reversed : 
Com.  v.  Masonic  Home,  188  Pa.  21,  1898. 

§78.  Mechanics'  Liens.  From  any  definite  judgment, 
order  or  decree,  entered  by  the  court  of  common  pleas 
under  any  of  the  provisions  of  this  act  [relating  to  me- 
chanics' liens],  or  from  the  refusal  to  open  a  judgment 
entered  by  default,  an  appeal  may  be  taken  by  the  party 
aggrieved  to  the  Supreme  Court  or  Superior  Court  as  in 
other  cases.  Act  June  4,  1901,  §59,  P.  L.  431,  3  Purd.  2507, 
pi.  80. 

(1)  Definite  Judgments.    "Definite"   means  "definitive"  or  final: 
Kurrie  v.  Cottingham,  209  Pa.  12,  1904. 

(2)  When  Appeal  Lies — Final  Decree  Necessary,     (a)  Appeal  lies 
from  order  striking  off  claim :  Carter  v.  Caldwell,  147  Pa.  370,  1892 ; 
(b)  from  order  striking  off  sci.  fa.  issued  before  lien  is  stricken  off: 
Orr  v.  Rogers,  29  Pa.  Super.  175,  1905;   (c)  but  not  from  refusal  to 
strike  off  claim  before  judgment  entered:  Seabrook  v.  Swarthmore 

140 


STATUTORY  PROCEEDINGS. 


§§48-101]  Municipal  Liens  §  78  (2)  (c)-§  79  (1) 

College,  65  Pa.  74,  1870;  Keemer  v.  Herr,  2  Penny.  175,  1882;  Carter 
v.  Caldwell,  147  Pa.  370,  1892 ;  Breitweiser  Co.  v.  Scott,  33  Pa.  Super. 
627,  1907;  Miller  v.  Fitz,  41  Pa.  Super.  582,  1910;  (d)  nor  from  dis- 
charge of  rule  to  show  cause  why  attorney  should  not  enter  appear- 
ance for  lien  claimant  and  mark  lien  discontinued  and  satisfied,  where 
sub-contractor  has  agreed  to  file  no  liens  and  that  any  attorney  may 
appear  and  strike  them  off:  Kurrie  v.  Cottingham,  209  Pa.  12,  1904; 
(e)  but  refusal  to  strike  off  claim  may  be  reviewed  on  appeal  from 
final  judgment:  Warren  v.  Johnston,  33  Pa.  Super.  617,  1907;  Miller 
v.  Fitz,  41  Pa.  Super.  582, 1910. 

(3)  Judgments  Entered  by  Default.    Appeal  from  refusal  to  open 
judgments  entered  by  default  would  seem  to  be  already  given  by  Act 
May  20, 1891,  §1,  P.  L.  101,  2  Purd.  1438,  pi.  14,  (§74,  above). 

(4)  New  Methods  Unconstitutional.    Any  new  method  for  collec- 
tion of  debt  or  enforcement  of  judgment,  under  Act  of  1901,  which 
gives  personal  action  against  owner  or  contractor,  is  unconstitutional : 
Vulcanite  Portland  Cement  Co.  v.  Allison,  220  Pa.  382,  1908;  Vulcan- 
ite Paving  Co.  v.  Transit  Co.,  220  Pa.  603,  1908;  Taylor  Lumber  Co.  v. 
Carnegie  Institute,  225  Pa.  486,  1909;  Sterling  Bronze  Co.  v.  Imp. 
Asso.,  226  Pa.  475,  1910. 

§79.  Municipal  Liens.  From  any  definitive  judg- 
ment, order  or  decree,  entered  by  the  court  of  common 
pleas  under  any  of  the  provisions  of  this  act  [relating  to 
municipal  liens],  or  from  the  refusal  to  open  a  judgment 
entered  by  default,  an  appeal  may  be  taken  by  the  party 
aggrieved  to  the  Supreme  or  Superior  Court,  as  in  other 
cases.  Act  June  4,  1901,  §40,  P.  L.  364,  3  Purd.  2646,  pi.  48. 

Nothing  in  this  act  [relating  to  collection  of  liens 
in  boroughs]  shall  be  taken  to  restrict  the  right  of  either 
plaintiff  or  defendant,  in  proceedings  under  it,  to  appeal  as 
in  other  cases.  Act  April  15,  1907,  §7,  P.  L.  83. 

(1)  When  Appeal  Lies — Final  Decree  Necessary.  No  appeal  lies 
from  an  order  permitting  an  amendment  or  from  refusal  to  strike 
off  municipal  lien:  Phila.  v.  Christman,  6  Pa.  Super.  29,  1897;  (b)  or 
from  dismissal  of  motion  for  judgment  on  the  whole  record :  Phila.  v. 
Pemberton,  206  Pa.  73,  1903. 

141 


SPECIAL  JURISDICTION  AND  PARTIES. 


§79  (2) -§80  Municipalities — Streets,  Bridges,  etc.  [Chap.  5, 

(2)  Judgments  Entered  by  Default.    Appeal  from  refusal  to  open 
judgment  entered  by  default  would  seem  to  be  already  given  by  Act 
May  20,  1891,  §1,  P.  L.  101,  2  Purd.  1438,  pi.  14,  (§74,  above). 

(3)  Claims  Accruing  and  Proceedings  Begun  Prior  to  Act.    This 
act  is  not  retroactive  and  proceedings  begun  before  it  was  in  force 
must  be  carried  out  under  prior  acts:  Tarentum  Boro.  v.  Moorhead, 
26  Pa.  Super.  273,  1904;  Scranton  v.  Stokes,  28  Pa.  Super.  437,  1905. 
Therefore  all  claims  accruing  prior  to  passage  of  Act  of  1901,  above, 
are  subject  to  Act  May  16,  1891,  §7,  P.  L.  70,  3  Purd.  2673,  pi.  83, 
which  provides  that  any  party  aggrieved  by  any  final  decree  on  any 
such  lien   (for  damages  for  municipal  improvements)   may  have  an 
appeal  to  the  Supreme  Court  as  in  other  cases,  the  same  to  be  sued 
out  within  one  year  from  entry  of  such  judgment  and  not  otherwise. 
For  time-limit  for  appeals  under  present  acts,  see  Chapter  VII,  §126 
et  seq.,  below. 

§80.  Municipalities —  (A)  Benefits  and  Damages — 
Streets,  Bridges,  Sewers.  Within  thirty  days  after  the 
confirmation,  modification,  changing  or  correcting  of  any 
report  [of  viewers  in  proceedings  to  assess  benefits  and 
damages  for  taking,  using,  keeping  or  injuring  private 
lands,  property  or  material  by  municipal  corporations  in 
the  laying  out,  opening,  widening,  straightening,  extending 
or  grading,  or  changing  grade  or  lines  of  streets,  paving, 
macadamizing,  or  otherwise  improving  of  streets,  lanes  or 
alleys,  the  construction  of  bridges  and  the  piers  and  abut- 
ments therefor,  the  construction  of  slopes,  embankments 
and  sewers,  the  changing  of  water-courses  or  vacation  of 
streets  or  alleys]  any  interested  party  may  appeal  from  the 
said  decree  to  the  Superior  Court  or  to  the  Supreme  Court 

as  the  case  may  be After  verdict  and  final 

judgment  [on  the  trial  of  an  appeal  to  the  court  of  com- 
mon pleas  from  the  report  of  viewers]  either  party  may 
have  an  appeal  to  the  Superior  Court  or  Supreme  Court  as 
in  other  cases.  Act  April  2.,  1903,  §6,  P.  L.  124,  3  Purd. 
2739,  pl-  90;  2740-1,  pi.  91. 

142 


STATUTORY  PROCEEDINGS. 


§§48-101]  Municipalities — Bridges  §80 

From  any  definitive  judgment,  order  or  decree  entered 
by  the  court  of  common  pleas  under  any  of  the  provisions 
of  this  act,  [providing  for  liens  for  taxes  and  municipal  im- 
provements and  regulating  proceedings  to  enforce  such 
liens]  or  from  the  refusal  to  open  a  judgment  entered  by 
default,  an  appeal  may  be  taken  by  the  party  aggrieved  to 
the  Supreme  or  Superior  Court,  as  in  other  cases.  Act 
June  4,  1901,  §40,  P.  L.  364,  3  Purd.  2646,  pi.  48. 

Either  party  may  appeal  from  the  decision  of  the  court 
of  quarter  sessions  [on  report  of  viewers  assessing  dam- 
ages and  expenses  for  making  connection  to  sewer  of  ad- 
joining municipality,  by  township  of  the  first  class]  to  the 
Superior  Court.  Act  July  17,  1901,  §2,  P.  L.  668,  i  Purd. 
853,  pi.  119. 

— (B)  Damages  for  Taking  of  Bridges  Connecting 
Parts  of  Municipalities.  Any  party  so  interested  may, 
within  thirty  days  after  final  decree,  [in  proceedings  in  the 
court  of  common  pleas  to  assess  damages  for  taking  of 
bridges  crossing  rivers  or  streams  intersecting  cities  or 
any  parts  thereof,  together  with  the  approaches  and  ap- 
purtenances thereto,  with  provisions  for  jury  trial  and  ex- 
ceptions to  viewers'  report]  have  an  appeal  to  the  Supreme 
(or  Superior)  Court.  If  no  exceptions  are  filed  or  no  de- 
mand made  for  trial  by  jury  within  said  thirty  days  after 
the  filing  of  said  report,  the  same  shall  become  absolute. 
Act  May  26,  1893,  §4,  P.  L.  154,  3  Purd.  2763,  pi.  193. 

— (C)  Damages  for  Property  Injured  by  Construction 
and  Maintenance  of  Bridges.  Any  party  interested  therein 
[in  proceedings  in  the  court  of  common  pleas  to  assess 
damages  for  private  property  entered  upon,  taken,  used 
or  appropriated  for  constructing  and  maintaining  piers, 
abutments,  fills,  slopes  and  approaches  necessary  in  the 
erection,  construction  and  maintenance  of  bridges  con- 

143 


SPECIAL  JURISDICTION  AND  PARTIES. 


§  80  Municipalities — Parks — Water-Courses  [Chap.  5, 

structed  by  cities  within  their  limits  over  any  stream  or 
river  which  shall  separate  any  parts  thereof,  where  a  jury 
trial  may  be  demanded  by  the  owner]  may,  within  thirty 
days  after  final  decree,  have  an  appeal  to  the  Supreme  (or 
Superior)  Court.  Act  May  26,  1893,  §4,  P.  L.  139,  3  Purd. 
2764,  pi.  200. 

—  (D)  Damages  for  Public  Parks.    Any  party  interested 
therein  [in  proceedings  in  the  court  of  common  pleas  to 
assess  damages  for  private  property  taken  for  public  parks 
where  a  jury  trial  may  be  demanded  by  the  owner]  may, 
within  thirty  days  after  final  decree,  have  an  appeal  to  the 
Supreme  (or  Superior)  Court.     If  no  exceptions  are  filed, 
or  no  demands  made  for  trial  by  jury  within  the  said  thirty 
days  after  the  filing  of  said  report,  the  same  shall  become 
absolute.     Act  June  8,  1895,  §4,  P.  L.  188,  3  Purd.  3400. 
pi.  38. 

—  (E)  Damages  for   Public    Grounds  and   Buildings. 
Upon  the  entry  of  final  judgment  on  any  issue  had  upon 
such  appeal  [to  the  court  of  common  pleas,  from  the  report 
of  viewers,  in  proceedings  to  assess  damages  for  private 
property  taken  by  a  city  for  erecting  or  constructing  neces- 
sary municipal  buildings,  fire  engine  houses,  gas  and  elec- 
tric light  works,  hospitals,  water-works,  or  poor  farms] 
either  party  shall  have  the  right  to  an  appeal  to  the  Su- 
perior or  Supreme  Court,  as  in  other  cases.    Act  March  26, 
1903,  §5,  P.  L.  63,  3  Purd.  2718,  pi.  46. 

—  (F)  Benefits  and  Damages — Water-Courses.     Any 
party  interested  in  any  assessment  of  damages  or  benefits 
[in  proceedings  in  the  court  of  common  pleas  to  assess 
damages  or  benefits  for  entering  upon  and  taking  private 
property  and  materials  in  vacating,  changing,  altering  or 
relocating  the  course  or  channel  of  any  creek,  run  or  na- 
tural waterway,  other  than  navigable  streams  within  the 

144 


STATUTORY  PROCEEDINGS. 


§§48-101]    Municipalities — License  Fees — Cities  of  1st  and  2nd  Class  §80 

limits  of  any  borough  or  city,  where  a  jury  trial  may  be  de- 
manded by  the  owner]  may,  within  thirty  days  after  final 
decree,  have  an  appeal  to  the  Supreme  or  Superior  Court. 
Act  April  28,  1899,  §7,  P.  L.  74,  3  Purd.  2768,  pi.  220. 

-  (G)  License  Fees  for  Telegraph,  Telephone,  Light  or 
Power  Companies — Reasonableness.  Either  party  shall 
have  the  right  of  appeal  from  the  order  of  the  court  [of 
common  pleas  in  proceedings  to  determine  reasonableness 
of  amount  of  license  fees  charged  telegraph,  telephone, 
light  or  power  companies  by  municipalities]  to  the  Su- 
preme or  Superior  Court,  as  in  other  cases.  Act  April  17, 
1905,  §4,  P.  L.  183,  5  Purd.  5717,  pi.  127. 

—  (H)  Cities  of  First  Class — Benefits  and  Damages- 
Improving  Plotted  Streets.    The  damages  so  assessed  [by 
viewers  appointed  to  assess  damages  and  benefits  in  the 
court  of  quarter  sessions  for  opening  and  widening  plot- 
ted streets]  shall  be  subject  to  appeal,  review  or  modifica- 
tion, as  may  be  provided  by  existing  laws.     Act  May  6, 
1887,  §i,  P.  L.  87,  3  Purd.  2950-1,  pi.  858. 

—  (I)  Cities  of  First  Class — Damages  for  School  Pur- 
poses.    Either  party  shall  have  the  right  of  appeal  [from 
judgment  of  the  court  of  common  pleas  confirming  the 
report  of  the  jury  to  assess  damages  for  taking  private 
property  for  school  purposes  by  cities  of  the  first  class]. 
Act  April  25,  1889,  §i,  P.  L.  50,  3  Purd.  2905,  pi.  712. 

—  (J)  Cities  of  Second  Class — Regulations  of  Councils 
as  to  Use  of  Streets.    Upon  any  dispute  arising  touching 
the  validity  or  meaning  of  such  regulations  [of  councils  of 
cities  of  the  second  class  authorizing  the  use  of  streets  by 
persons  or  corporations]  any  party  affected  shall  have  a 
right  to  invoke  the  jurisdiction  of  the  court  of  common 
pleas  by  bill  or  petition,  from  whose  decree  either  party 

145 
10 


SPECIAL  JURISDICTION  AND  PARTIES. 


§  80  Municipalities — Cities  of  Third  Class  [Chap.  5, 

shall  have  a  right  to  appeal  to  the  Supreme  Court.     Act 
May  1 6,  1889,  §5,  P.  L.  228,  3  Purd.  3091,  pi.  590. 

— (K)  Cities  of  Third  Class — Benefits  and  Damages  for 
Streets,  S'ewers,  Water-courses  and  Public  Works.  After 
final  judgment  [on  the  trial  by  a  jury  on  appeal  from  as- 
sessment of  benefits  or  damages  for  private  property  taken 
for  laying  out,  opening,  widening,  extending  or  grading 
streets,  lanes  or  alleys,  erecting  or  constructing  water,  gas 
or  electric  light  works,  slopes,  embankments  or  sewers,  or 
changing  water  courses  in  cities  of  third  class]  either  party 
may  have  a  writ  of  error  therefrom  to  the  Supreme  (or 
Superior)  Court  in  the  manner  prescribed  in  other  cases. 
Act  May  23,  1889,  art.  14,  §6,  P.  L.  277,  3  Purd.  3i86-7,.pl. 

3I3- 

—  (L)  Cities  of  Third  Class — Benefits  and  Damages  for 
Enclosing  Waterways.  Any  party  interested  in  any  assess- 
ment of  damages  or  benefits  [to  private  property  for  con- 
fining and  paving,  or  completely  enclosing  any  creek,  run 
or  natural  waterway  other  than  a  navigable  stream  by 
cities  of  the  third  class]  may,  within  thirty  days  after  the 
final  decree,  have  an  appeal  to  the  higher  courts.  Act 
Tune  i,  1907,  §6,  P.  L.  378,  5  Purd.  5789,  pi.  50. 

(1)  Appeal  in  Eminent  Domain  Cases.     See  Art.  16,  §8,  Const., 
and  Act  of  1874,  §48  (A),  above. 

(2)  Superior  Court — Jurisdiction.     For  jurisdiction  of  Superior 
Court,  see  Chapter  VI,  §108  et  seq.,  below. 

(3)  Time  for  Appeal,     (a)  Permission  to  appeal  within  thirty  days 
given  by  the  Act  of  1903  (  (A),  above)  does  not  take  away  the  right  to 
appeal  within  six  months  given  by  the  Act  of  May  18,  1897,  §4  P.  L. 
68,  2  Purd.  1433,  pi.  3:  Scranton  Sewer,  213  Pa.  4,  1905;  (b)  where 
certain  laws  authorizing  municipal  improvements  are  void,  appeals 
may  be  taken  within  one  year  from  final  judgment  after  trial  in  com- 
mon pleas  by  any  party  interested  in  any  assessment  of  benefit  or 
damages  for  grading,  paving,  macadamizing  or  otherwise  improving 
any  street,  lane  or  alley,  or  constructing  any  sewer,  in  which  work  or 

146 


STATUTORY  PROCEEDINGS. 


§§48-101]  Municipalities  §80 

labor  has  been  done,  or  material  furnished,  or  private  property  has 
been  taken,  injured  or  destroyed:  Acts  May  15,  1891,  §1,  cl.  13,  P.  L. 
71,  3  Purd.  2760,  pi.  171;  June  4,  1897,§1,  cl.  13,  P.  L.  116,  3  Purd. 
2762,  pi.  187;  (c)  or  for  opening,  widening,  extending,  straightening, 
grading,  paving,  curbing,  macadamizing  or  otherwise  improving  any 
street,  lane  or  alley:  Act  April  18,  1899,  §1,  cl.  13,  P.  L.  60,  3  Purd. 
2756,  pi.  155;  (d)  or  in  addition  to  said  street  improvements,  con- 
structing any  sewer  or  drain  in  cities  of  the  third  class:  Act  March 
14,  1907,  §1,  cl.  13,  P.  L.  15,  5  Purd.  5712,  pi.  111. 

(4)  Street  Improvements  in  Cities  of  Second  Class — Void  Acts. 
Those  sections  of  the  Act  of  1889  (  (J),  above)  providing  for  creation 
of  board  of  viewers  to  assess  damages  and  benefits  for  improving 
streets  and  constructing  sewers  in  cities  of  second  class,  are  unconsti- 
tutional and  void:  Wyoming  Street,  137  Pa.  494,  1891;  Pittsburgh 
Petition,  138  Pa.  401,  1891.    These  decisions  do  not  seem  to  affect  the 
provision  of  the  section  given  above. 

(5)  Review  Under  Acts  of  1889.  A  statutory  provision  for  review 
expressed  in  terms  substantially  similar  to  those  of  Act  April  23,  1889 
(  (I),  above)  was  held  to  apply  to  appellate  courts  and  not  to  common 
pleas.     See  §56,  note   (3),  above.     The  Act  of  May  23,  1889,   (K), 
above,  was  repealed  by  Act  of  June  4,  1901,  §79,  (A),  above,  in  so  far 
as  it  related  to  the  extent  of  municipal  liens  and  the  practice  and 
procedure  in  relation  thereto. 

(6)  Review  Under  Act  of  1905.    Appeal  given  by  the  Act  of  1905, 
(  (G),  above)  is  not  merely  a  substitute  for  certiorari  but  brings  up 
entire  record:  Delaware  &  Atl.  Tel.  Co.'s  License  Fees,  37  Pa.  Super. 
151,  1908. 

(7)  Parties  to  Appeal  Under  Act  of  1903 — Constitutional  Laws. 
(a)  When  benefits  are  assessed  exclusively  to  pay  costs  of  sewer  and 
there  is  nothing  to  show  that  property  was  taken  or  injured,  prop- 
erty owner  cannot  appeal  from  the  report  and  demand  a  jury  trial: 
Seventh  Street  Sewer,  35  Pa.  Super.  484,  1908 ;  Harrisburg  v.  Forster, 
39  Pa.  Super.  238,  1909;   (b)   his  remedy  in  such  case  is  to  file  ex- 
ceptions and  appeal  from  judgment  of  common  pleas  on  such  excep- 
tions:  Seventh  Street  Sewer,  supra;  Harrisburg  v.  Forster,  supra; 
Fraser  v.  Pittsburg  41  Pa.  Super.  103,  1909;  (c)  provision  in  the  Act 
of  1903  to  the  effect  that  the  report  of  viewers,  when  confirmed  by 
court,  shall  be  final  and  conclusive  as  to  assessments  made  to  pay 
costs  of  improvements,  does  not  deprive  a  property  owner  of  right  to 

147 


SPECIAL  JURISDICTION  AND  PARTIES. 


§§  81,  82  Natural  Gas  Companies — Non-Suit  [Chap.  5, 

appeal  within  meaning  of  Art.  16,  §8,  of  the  Constitution  of  Pennsyl- 
vania: Brackney  v.  Graf  ton  Boro.,  31  Pa.  Super.  413,  1906. 

(8)  Toll  Bridge — Condemnation.     For  appeals  from  proceedings 
for  condemnation  of  toll  bridges,  see  §96,  below. 

(9)  Practice  on  Appeal.     For  practice   as   to   bail,   supersedeas 
and  costs,  see  §48  (D),  above. 

§8 1.  Natural  Gas  Companies. — (A)  Land  Damages  for 
Easement.  Either  party  may  appeal  from  the  report  of  the 
viewers  [to  assess  land  damages  for  easements  for  pipe 
lines]  within  twenty  days  after  the  filing  thereof  to  the 
court  of  common  pleas,  and  have  a  jury  trial  as  in  ordi- 
nary cases,  and  writ  of  error  to  the  Supreme  (or  Superior) 
Court.  Act  May  n,  1897,  §i,  P.  L.  50,  3  Purd.  3225,  pi.  18. 

— (B)  Pipes,  Character  of  and  Manner  of  Laying.  Either 
party  shall  have  a  right  of  appeal  therefrom  [from  the  de- 
cree of  the  court  of  common  pleas  in  proceedings  to  de- 
termine the  manner  of  laying  pipes  and  the  character  of 
said  pipes],  as  in  cases  of  equity,  to  the  Supreme  Court. 
Act  May  29,  1885,  §12,  P.  L.  29,  3  Purd.  3225,  pi.  20. 

(1)  Appeal  in  Eminent  Domain  Cases.     See  Art.  16,  §8,  Const., 
and  Act  of  1874,  §48  (A),  above. 

(2)  Superior  Court — Jurisdiction.     For  jurisdiction  of  Superior 
Court,  see  Chapter  VI,  §108  et  seq.,  below. 

(3)  Time  for  Appeal.    Act  May  19,  1897  (§126,  below)  gives  right 
to  appeal  within  six  months. 

§82.  Non-suit — Refusal  to  Set  Aside.  In  case  the  said 
court  [of  common  pleas]  in  bane  shall  refuse  to  set  aside 
the  non-suit  [granted  where  the  defendant  has  offered  no 
evidence],  the  plaintiff  may  remove  the  record,  by  writ  of 
error,  into  the  Supreme  (or  Superior)  Court  for  revision 
and  review,  in  like  manner  and  with  like  effect  as  he  might 
remove  a  judgment  rendered  against  him  upon  a  demurrer 

148 


STATUTORY  PROCEEDINGS. 


§§48-101]  Non-Suit— Refusal  to  Set  Aside  §82(1)  (2) 

to  evidence.  Act  March  1 1,  1875,  §  i,  P.  L.  6,  3  Purd.  3320-1. 

(1)  What  is  Reviewable.  (a)  Entry  of  or  refusal  to  enter  com- 
pulsory non-suit  is  not  reviewable:  Girard  v.  Gettig,  2  Bin.  234,  1810; 
Bavington  v.  R.  R.,  34  Pa.  358,  1859;  Pownall  v.  Steele,  52  Pa.  446, 
1866;  U.  S.  Telegraph  Co.  v.  Wenger,  55  Pa.  262,  1867;  Mobley  v. 
Bruner,  59  Pa.  481, 1869;  Lehman  v.  Kellerman,  65  Pa.  489, 1870;  Bal- 
lentine  v.  White,  77  Pa.  20,  1874;  Easton  Boro.  v.  Neff,  102  Pa.  474, 
1883 ;  Schubkagel  v.  Dierstein,  131  Pa.  46, 1890 ;  Kelly  v.  Bennett,  132 
Pa.  218, 1890 ;  Lowrey  v.  Robinson,  141  Pa.  189,  1891 ;  Wray  v.  Spence, 
145  Pa.  399,  1891;  Scranton  v.  Barnes,  147  Pa.  461,  1892;  Scanlon  v. 
Suter,  158  Pa.  275,  1893;  Medary  v.  Gathers,  161  Pa.  87,  1894;  Craw- 
ford v.  McKinney,  165  Pa.  605,  1895;  Beard  v.  Ry.,  3  Pa.  Super.  171, 
1896;  Wallace  v.  Jameson,  179  Pa.  98, 1897;  Davis  v.  Ins.  Co.,  5  Pa.  Su- 
per. 506, 1897;  Rockwell  v.  Eldred  Boro.,  7  Pa.  Super.  95, 1898;  Morgan 
v.  Duquesne  Boro.,  29  Pa.  Super.  100,  1905;  such  action  being  within 
discretion  of  lower  court:  see  §228,  note  (24  (12);  (b)  appeal  lies 
only  to  refusal  to  take  off  compulsory  non-suit  and  writ  is  premature 
unless  motion  to  take  off  non-suit  has  been  refused:  Haverly  v.  Mer- 
cur,  78  Pa.  257, 1875 ;  Adams  v.  Adams,  1  W.  N.  C.  279, 1875 ;  Scanlon 
v.  Suter,  158  Pa.  275,  1893;  Reed  v.  Casualty  Co.,  189  Pa.  596,  1899; 
Com.  v.  Everts,  19  Pa.  Super.  419,  1902;  Hallock  v.  Lebanon,  215  Pa. 
1,  1906;  Lee  Co.  v.  Sherman,  43  Pa.  Super.  557,  1910;  (c)  except 
where  non-suit  is  entered  for  insufficiency  of  answer  to  rule  for  more 
specific  statement,  in  which  case  appeal  may  be  taken  without  prior 
motion  to  take  off  non-suit :  Murdock  v.  Martin,  132  Pa.  86,  1890. 

(2)  Exceptions  Necessary,    (a)  Exception  must  be  properly  taken : 
Bondz  v.  Penna.  Co.,  138  Pa.  153,  1890;  Anderson  v.  Oliver,  138  Pa. 
156,  1890 ;  Miller  v.  Balfour,  138  Pa.  183, 1890 ;  Finch  v.  Conrade,  154 
Pa.  326, 1893;  Scanlon  v.  Suter,  158  Pa.  275, 1893;  Albright  v.  Coal  Co., 
203  Pa.  65, 1902;  (b)  the  exception  need  not  be  taken  at  the  time  of  the 
refusal,  but  may  be  filed  after  the  record  is  made  up  in  the  common 
pleas:  Yerkes  v.  Richards,  153  Pa.  646,  1893;  (c)  and  it  seems  excep- 
tion could  be  taken  any  time  before,  or  even  after,  appeal,  and  within 
six  months :  Eisenberg  v.  Fraim,  15  Pa.  Dist.  445,  1906.    Act  May  11, 
1911,  P.  L.  279,  §§155,  162,  above,  seems  to  supersede  these  cases. 

(3)  Judgment — Effect  of  Non-Suit.     Non-suit  under  the  Act  of 
1875  is,  in  effect,  a  demurrer  to  evidence,  except  that  judgment  can- 
not be  given  for  defendant,  and  appellate  court,  in  case  of  reversal, 

149 


SPECIAL  JURISDICTION  AND  PARTIES. 


§82  (3) -§§83,  84        Orphans'  Court  Sales — Partition  [Chap.  5, 

will  award  a  procedendo:  Smyth  v.  Craig,  3  W.  &  S.  14, 1841;  Bevan  v. 
Ins.  Co.,  9  W.  &  S.  187,  1844;  Miller  v.  Bealer,  100  Pa.  583,  1882;  Hill 
v.  Trust  Co.,  108  Pa.  1,  1885;  Jacques  v.  Fourthman,  137  Pa.  428, 
1890;  Lerch  v.  Bard,  153  Pa.  573,  1893;  Finch  v.  Conrade,  154  Pa. 
326,  1893;  Bastian  v.  Phila.,  180  Pa.  227,  1897;  Kaufman  v.  Abeles, 
11  Pa.  Super.  616,  1899. 

(4)  Time  for  Appeal.    By  Act  May  19, 1897,  appeal  must  be  taken 
within  six  months.   See   §126,  below.     An  appeal  is  too  late  after 
eight  months :  Farrel  v.  Ky.,  27  Pa.  Super.  127,  1905. 

(5)  Superior  Court — Jurisdiction.     For  jurisdiction  of   Superior 
Court,  see  Chapter  VI,  §108  et  seq.,  below. 

§83.  Orphans'  Court  Sales — Refusal  of  Feigned  Issue. 
For  right  of  appeal  from  refusal  of  issue  on  distribution  of 
proceeds  of  orphans'  court  sales,  see  §66  (C). 

§84.  Partition—  (A)  Judgment  Quod  Partitio  Fiat. 
Writs  of  error  may  be  sued  out,  upon  the  judgment  quod 
partitio  fiat,  in  all  actions  of  partition  now  pending  in  the 
courts  of  common  pleas,  or  that  may  hereafter  be 
brought;  and  the  Supreme  (or  Superior)  Court  shall  hear 
and  determine  the  same  as  if  the  said  writ  or  writs  of  error 
were  issued  on  the  final  judgments  in  said  proceedings. 
Act  April  5,  1842,  §15,  P.  L.  230,  2  Purd.  1434,  pi.  5. 

—  (B)  Mineral  Lands — Luzerne  County.  Writs  of 
error  and  appeals  to  the  Supreme  (or  Superior)  Court  from 
the  judgment  or  decree  of  the  court  of  common  pleas  or 
the  orphans'  court  [in  partition  of  mineral  lands  in  Lu- 
zerne county]  shall  be  allowed  as  in  other  cases.  Act  Feb. 
26,  1870,  §i,  P.  L.  256,  3  Purd.  3449-50,  pl-  102. 

(1)  Judgment  Confessed.     Where  judgment  quod  partitio  fiat  is 
entered  by  confession,  writ  will  not  lie  until  after  final  judgment; 
Hawk  v.  Jones,  24  Pa.  127,  1854. 

(2)  Superior  Court — Jurisdiction.     For  jurisdiction  of  Superior 
Court,  see  Chapter  VI,  §108  et  seq.,  below. 

ISO 


STATUTORY  PROCEEDINGS. 


§§48-101]  Paupers  §  85,(1)  (a)-(e) 

§85.  Paupers — Issue  on  Appeal  from  Order  of  Remov- 
al. Upon  the  hearing  and  argument  of  all  appeals  before 
any  court  of  quarter  sessions  from  the  order  of  removal 
of  paupers  from  one  district  to  another,  it  shall  be  lawful 
for  either  of  the  parties  to  the  issue  to  except  to  any  de- 
cision of  the  court  upon  any  point  of  evidence  or  of  law, 
which  exception  shall  be  noted  by  the  court  and  filed  of 
record  as  in  civil  cases,  and  a  writ  of  error  to  the  [Su- 
preme] (Superior)  Court  may  be  taken  by  either  party  to 
the  judgment  of  the  court  with  like  effect  as  in  civil  cases. 
Act  March  16,  1868,  §i,  P.  L.  46,  2  Purd.  1435,  pi.  9. 

(1)  Scope  of  Review  Under  Act.  (a)  The  Act  of  1868  does  not 
contemplate  review  on  merits,  but  appellate  court  will  review  only 
matters  of  evidence  and  law  which  have  been  specifically  excepted 
to  and  made  part  of  record:  Lower  Augusta  Twp.  v.  Selinsgrove,  64 
Pa.  166,  1870;  Moreland  Twp.  v.  Davidson  Twp.,  71  Pa.  371,  1872; 
Wayne"  Twp.  v.  Jersey  Shore,  81%  Pa.  264,  1875;  Laport  Boro.  Over- 
seers v.  Overseers,  95  Pa.  269,  1880;  Parker  Township  Over- 
seers v.  Overseers,  13  W.  N.  C.  141,  1882;  Warsaw  Township 
Poor  District  v.  Poor  District,  107  Pa.  301,  1884;  Elk  Township 
Overseers  v.  Overseers,  18  W.  N.  C.  438,  1886;  S.  C.  4  Sad. 
49;  Montoursville  Boro.  Overseers  v.  Overseers,  112  Pa.  99,  1886; 
Kittanning  Twp.  v.  Madison  Twp.,  146  Pa.  108,  1892;  Christy's 
Lunacy,  2  Pa.  Super.  259,  1896;  Elderton  Boro.  Overseers  v.  Over- 
seers, 2  Pa.  Super  197,  1896;  Liberty  Twp.  Overseers  v.  Overseers,  4 
Pa.  Super.  411,  1897;  Galeton  Poor  Dist.  v.  Poor  Dist.,  18  Pa.  Super. 
428,  1901 ;  (b)  nor  does  it  apply  to  decrees  for  payment  of  money  ex- 
pended in  maintenance  and  support  of  paupers  removed :  Perry 
County  Directors  v:  Overseers,  110  Pa.  153,  1885;  James's  Case,  116 
Pa.  152,  1887;  Green  Twp.  Poor  Dist.  v.  Poor  Dist.,  5  Pa.  Super.  516, 
1897;  Luzerne  County  Poor  Dist.  v.  Directors,  22  Pa.  Super.  274,  1903; 
(c)  the  writ  does  not  bring  up  affidavit  on  rule  to  quash :  Sugar  Creek 
Overseers  v.  Overseers,  62  Pa.  479,  1869 ;  (d)  certiorari  will  not  lie  in 
cases  where  act  allows  writ  of  error:  Lewisburg  Boro.  Overseers  v. 
Overseers,  1  W.  N.  C.  209,  1884;  (e)  unless,  perhaps,  to  raise  ques- 
tion of  jurisdiction:  Renovo  Overseer  v.  Overseers,  78  Pa.  301,  1875; 


SPECIAL  JURISDICTION  AND  PARTIES. 


§85(1)  (f)-(4)  Paupers  [Chap.  5, 

(f)  appellate  court  will  not  reverse  on  grounds  which  could  have 
been  set  up  in  lower  court :  Susquehanna  Twp.  Overseers  v.  Overseers, 
4  Pa.  Super.  589,  1897. 

(2)  Exceptions,      (a)    Appeal  cannot  be  maintained  without  ex- 
ceptions appearing  on  record :  Lewisburg  Boro.  Overseers  v.  Overseers, 
1  W.  N.  C.  209,  1874;  Parker  Twp.  Overseers  v.  Overseers,  13  W.  N. 
C.  141,  1882 ;  Berks  County  Poor  Directors  v.  Directors,  21  Pa.  Super. 
627,  1902;   (b)  they  should  be  presented  within  reasonable  time  and 
before  appeal  taken:  Mifflin  Twp.  Poor  Dist.  v.  Poor  Dist.,  37  Pa. 
Super.  611,  1908;  (c)  and  it  seems  exceptions  filed  two  months  after 
decree  are  too  late:  Parker  Twp.  Overseers  v.  Overseers,  13  W.  N.  C. 
141,  1882;  (d)  exceptions  must  be  taken  to  specific  points  of  evidence 
or  of  law;  a  general  exception  to  opinion  or  decree  of  lower  court  is 
not  sufficient:  Lower  Augusta  Twp.  v.  Selinsgrove,  64  Pa.  166,  1870; 
Chapman  Twp.  Overseers'  Ap.,  40  Leg.  Int.  350,  1883;  West  Perry 
Twp.  Overseers  v.  Overseers,  2  Walk.  262,  1889;  Elk  Twp.  Overseers 
v.  Overseers,  18  W.  N.  C.  438,  1886;  S.  C.  4  Sad.  49;  Cambria  County 
v.  Madison  Twp.,  138  Pa.  109,  1890 ;  Liberty  Twp.  Overseers  v.  Over- 
seers, 4  Pa.  Super.  411,  1897;  Fermanagh  Twp.  Overseers  v.  Over- 
seers, 4  Pa.  Super.  573,  1897;  Edenburg  Boro.  Poor  Dist.  v.  Poor 
Dist.,  5  Pa.  Super.  516,  1897;  East  Franklin  Twp.  Overseers  v.  Over- 
seers, 23  Pa.  Super.  522,  1903;  Shrewsbury  Twp.  Poor  Dist.  v.  Poor 
Dist.,  33  Pa.  Super.  378,  1907;  Mifflin  Twp.  Poor  Dist.  v.  Poor  Dist., 
37  Pa.  Super.  611,  1908;  (e)  when  exceptions  do  not  relate  to  points 
of  evidence  and  facts  as  found  render  points  of  law  inapplicable, 
there  is  nothing  for  appellate  court  to  review:  Kittanning  Twp.  v. 
Madison  Twp.,  146  Pa.  108,  1892;  (f)  a  point  of  evidence  may  include 
competency  of  witness  offered,  or  whether  evidence  offered  is  compe- 
tent or  relevant:  Lower  Augusta  Twp.  v.  Selinsgrove,  64  Pa.  166, 
1870;  Spring  Twp.  Overseers  v.  Overseers,  1  Pa.  Super.  383,  1896; 
Perry  Twp.  Overseers  v.  Overseers,  8  Pa.  Super.  640,  1898;   (g)   a 
point  of  law  is  question  of  law  applicable  to  facts  as  they  may  be 
found  by  court,  which  party  may  propose  in  shape  of  written  point 
and  require  answer:  Lower  Augusta  Twp.  v.  Selinsgrove,  64  Pa.  166, 
1870;  Spring  Twp.  Overseers  v.  Overseers,  1  Pa.  Super.  383,  1896. 

(3)  Time  for  Appeal.    By  Act  May  19,  1897,  time  for  appeal  is 
limited  to  six  months.    See  §126,  below. 

(4)  Superior  Court.    For  jurisdiction  of  Superior  Court  in  appeals 
from  quarter  sessions,  see  §108,  below. 

152 


STATUTORY  PROCEEDINGS. 


§§48-101]  Pipe  Lines — Plank  Roads — Points  Reserved  §§86-88 

§86.  Pipe  Line  Companies —  (A)  Land  Damages.  After 
final  judgment  [in  appeals  from  reports  of  viewers  assess- 
ing damages  for  land  taken  or  right  of  way  acquired  by 
pipe-line  companies],  either  party  may  have  a  writ  of  error 
thereto  from  the  Supreme  (or  Superior)  Court,  in  the  man- 
ner prescribed  in  other  cases.  Act  June  2,  1883,  §3,  P.  L. 
61,  3  Purd.  3535-6-7,  pi.  5- 

— (B)  Forfeiture  and  Escheat  by  Quo  Warranto.  From 
which  decree  [or  forfeiture  and  escheat  of  the  franchise, 
property,  stocks  or  bonds  of  a  pipe-line  company  for  ac- 
quiring control  of  a  competing  line  in  proceedings  by  quo 
warranto]  any  party  interested  may  appeal  to  the  Supreme 
Court  at  any  time  within  six  months  after  such  decree,  and 
riot  afterwards.  Act  June  13,  1883,  §3,  P.  L.  93. 

§87.  Plank  Roads — Equity  Proceedings.  Either  party 
to  such  proceedings  in  equity  [under  the  general  plank 
road  laws]  may  take  a  writ  of  error  or  appeal  to  the  Su- 
preme (or  Superior)  Court,  in  any  district  in  which  the 
same  shall  then  be  sitting.  Act  April  14,  1863,  §i,  P.  L. 
374,  2  Purd.  1421,  pi.  40. 

(1)  Appeal  in  Eminent  Domain  Cases.     See  Art.  16,  §8,  Const., 
and  Act  of  1874,  §48  (A)  above. 

(2)  Superior  Court — Jurisdiction.     For  jurisdiction  of  Superior 
Court,  see  Chapter  VI,  §108  et  seq.,  below. 

§88.  Points  Reserved—  (A)  Philadelphia  .District 
Court.  It  shall  be  lawful  for  any  one  of  the  said  judges  [of 
the  district  court  for  the  city  and  county  of  Philadel- 
phia], when  he  thinks  it  expedient,  to  reserve  questions  of 
law,  which  may  arise  on  the  trial  of  a  cause,  for  the  con- 
sideration and  judgment  of  all  the  judges  of  said  court 

153 


SPECIAL  JURISDICTION  AND  PARTIES. 


§  88  Points  Reserved  [Chap.  5, 

sitting  together :  Provided,  That  either  party  shall  have  the 
right  to  a  bill  of  exceptions  to  the  opinion  of  the  court,  as 
if  the  point  had  been  ruled  and  decided  on  the  trial  of  the 
cause.  Act  March  28,  1835,  §5,  P.  L.  88,  3  Purd.  3654-7, 

P-  39- 

—  (B)  Common  Pleas  Generally.     The   same   powers 
which  now  exist  in  the  district  court  of  the  city  of  Phila- 
delphia, so  far  as  the  same  regards     ....     entering 
judgments  on  reserved  points,  be  and  the  same  are  hereby 
extended  to  the  courts  of  common  pleas  of  the  several 
counties  of  this  commonwealth,  subject,  however,  to  the 
same  rules  and  regulations  in  regard  to  writs  of  error  from 
the  Supreme  (or  Superior)  Court.    Act  April  22,  1863,  §i, 
F.  L.  554,  3  Purd.  3658,  pi.  41. 

—  (C)  Judgment  Non  Obstante  Veredicto.  From  which 
judgment  thus  entered  [on  motion  for  judgment  non  ob- 
stante  veredicto  on  the  whole  record  on  trial  of  issue  where 
a  point  requesting  binding  instructions  has  been  reserved 
or  declined]  either  party  may  appeal  to  the  Supreme  or 
Superior  Court  as  in  other  cases,  which  shall  review  the 
action  of  the  court  below,  and  enter  such  judgment  as  shall 
be  warranted  by  the  evidence  taken  in  that  court.     Act 
April  22,  1905,  §i,  P.  L.  286,  5  Purd.   5848,  pi.  7. 

—  (D)  Judgment  on  Whole  Record  where  Jury  have 
Disagreed.     From  the  judgment  thus  entered  [on  motion 
for  judgment  on  the  whole  record  on  trial  of  issue  where 
point  requesting  binding  instructions  has  been  reserved  or 
declined  and  the  jury  have  disagreed]   the  party  against 
whom  it  is  entered  may  appeal  to  the  Supreme  or  Superior 
Court,  as  in  other  cases,  which  shall  review  the  action  of 
the  court  below  and  enter  such  judgment,  if  any,  as  should 
have  been  entered  by  the  court  below  upon  that  evidence. 
Act  April  20,  1911,  §i,  P.  L.  70. 

154 


STATUTORY  PROCEEDINGS. 


§§48-101]  Points  Reserved  §88(l)-(4) 

(1)  Exceptions  Necessary,     (a)  Judgment  on  reserved  points  will 
not  be  reviewed  unless  exceptions  are  taken:  Miller  v.  Hershey,  59 
Pa.  64,  1868;  Northumberland  County  Bank  v.  Eyer,  60  Pa.  436,  1869; 
Penna.  Ins.  Co.  v.  Ins.  Co.,  71  Pa.  31,  1872;  Smith  v.  Van  Home,  72 
Pa.  207,  1872;  Merkel  v.  County,  81%  Pa.  505,  1875;  Yard  v.  Pan- 
coast,  108  Pa.  384,  1885;  Bow  v.  Higgins,  112  Pa.  1,  1886;  Central 
Bank  v.  Earley,  113  Pa.  477,  1886;  Brown  v.  Pittsburg,  1  Mona.  8, 
1888;  Blake  v.  Metzgar,  150  Pa.  291,  1892;  Boyle  v.  Mahanoy  City, 
187  Pa.  1,  1898;  Keefer  v.  Pacific  Ins.  Co.,  201  Pa.  448,  1902;  Evesson 
v.  Ziegfeld,  22  Pa.  Super.  79, 1903;  Phila.  v.  Bilyeu,  36  Pa.  Super.  562, 
1908;  International  Trust  Co.  v.  Printz,  37  Pa.  Super.  134,  1908; 
Schmidt  Brew.  Co.  v.  Transit  Co.  42  Pa.  Super.  168,  1910 ;  Rothacker 
v.  Phila.,  42  Pa.  Super.  408,  1910 ;  Hunter  v.  R.  R.,  45  Pa.  Super.  468, 
1911 ;  (b)  and  a  point  requesting  binding  instructions  must  have  been 
submitted  to  warrant  a  request  for  judgment  n.  o.  v.  under  Act  of 
1905:  Phila.  v.  Bilyeu,  36  Pa.  Super.  562,  1908;  Haley  v.  Chemical  Co., 
224  Pa.  316,  1909;  (c)  but  court  will  not  reverse  because  record  does 
not  show  such  request  was  made,  when  both  parties  admit  it  was  done 
and  it  appeared  lower  court  stated  counsel  had  agreed  question  should 
be  disposed  of  by  motion  for  judgment  n.  o.  v. :  Long  v.  McHenry, 
45  Pa.  Super.  530,  1911. 

(2)  Pendency  of  Motion  for  New  Trial.       Appellate    court    will 
not  enter  judgment  on  reserved  point  when  motion  for  new  trial  is 
pending  and  undetermined  in  court  below:  Leach  v.  Ansbacher,  28 
Leg.  Int.  277,  1871;  Freiler  v.  Kear,  126  Pa.  470, 1889. 

(3)  Power  of  Appellate  Court  to  Enter  Judgment,     (a)  The  Act 
of  1905,  is  not  intended  to  disturb  distinction  between  province  of  the 
court  and  jury,  and  no  judgment  can  be  entered  except  where  binding 
instructions  would  have  been  proper  at  the  close  of  the  trial:  Dalmas 
v.  Kemble,  215  Pa.  410, 1906;  Bond  v.  R.  R.,  218  Pa.  34, 1907;  Shannon 
v.  McHenry,  219  Pa.  267,  1908;  Tilburg  v.  Ry.,  221  Pa.  245,  1908; 
Hardoncourt  v.  Iron  Co.,  225  Pa.  379,  1909;   (b)   where  court  is  of 
opinion  that  verdict  is  clearly  against  weight   of  evidence,   proper 
remedy  is  a  new  trial  and  not  judgment  n.  o.  v. :  Bond  v.  R.  R.,  218  Pa. 
34,  1907. 

(4)  Remitting  Record  to  Court  Below.      Where   appellate    court 
reverses  judgment  n.  o.  v.,  entered  under  the  Act  of  1905,  judgment        >.^^ 
will  not  be  given  for  appellant,  but  the  record  will  be  remitted  to  the 

court  below  with  directions  to  enter  such  judgment  as  law  and  right 

155 


SPECIAL  JURISDICTION  AND  PARTIES. 


§§  89,  90  Quo   Warranto — Railroads — Land  Damages  [Chap.  5, 

require,  in  order  that  appellee  may  not  lose  opportunity  to  appeal: 
Hughes  v.  Miller,  192  Pa.  365,  1899;  Hawn  v.  Stoler,  22  Pa.  Super. 
307,  1903;  McGeehan  v.  Hughes,  217  Pa.  121,  1907;  Hardoncourt  v. 
Iron  Co.,  225  Pa.  379,  1909. 

§89.  Quo  Warranto.  It  shall  be  lawful  for  any  person 
aggrieved  by  the  judgment  of  any  court  of  common  pleas 
upon  any  writ  of  quo  warranto  as  aforesaid  [issued  by  a 
court  of  common  pleas  under  the  concurrent  jurisdiction 
hereby  given]  to  remove  the  same  by  writ  of  error  into  the 
Supreme  (or  Superior)  Court  for  the  proper  district.  Act 
June  14,  1836,  §15,  P.  L.  621,  3  Purd.  3747,  pi.  15. 

(1)  Parties  to  Appeal.    The  minority  party  in  a  beneficial  society, 
against  which  judgment  of  ouster  is  entered  and  acquiesced  in  by  the 
majority,  has  no  standing  to  appeal:  Com.  v.  Order  of  Solon,  166  Pa. 
33,  1895. 

(2)  When  Appeal  Lies,     (a)  Appeal  lies  from  order  discharging 
rule  to  open  judgment  of  ouster :  Com.  v.  0  'Donnel,  188  Pa.  23,  1898 ; 
(b)  but  appeal  will  not  lie  to  refusal  to  grant  writ  unless  abuse  of 
discretion  by  lower  court  is  shown:  Com.  v.  McCarter,  98  Pa.  607, 
1881;  Com.  v.  Davis,  109  Pa.  128,  1885;  (c)  nor  to  order  continuing 
trial  until  substituted  defendants  have  been  given  notice  to  appear, 
such  an  order  being  interlocutory  only:  Com.  v.  Moore,  199  Pa.  160, 
1901. 

(3)  Jurisdiction — Supreme  Court.    Where  Supreme  Court  has  jur- 
isdiction of  appeal  from  original  judgment  in  quo  warranto,  it  has 
also  from  judgments  in  ancillary  and  supplemental  proceedings,  such 
as  rule  to  open  original  judgment  in  mandamus  proceeding:  Com.  v. 
0  'Donnell,  7  Pa.  Super.  49,  1898. 

(4)  Proceedings  Against  Telegraph  Companies.     See  §95,  below. 

(5)  Proceedings    Against    Pipe-Line    Companies.       See  §86   (B), 
above. 

§90.  Railroads — Land  Damages.  After  final  judgment 
[in  railroad  land  damage  cases]  either  party  may  have  a 
writ  of  error  thereto  from  the  Supreme  (or  Superior) 

156 


STATUTORY  PROCEEDINGS. 


§§48-101]  Real  Estate — Price  Act — Quieting  Title  §91 

Court  in  the  manner  prescribed  in  other  cases.  Act  April 
9,  1856,  §3,  P.  L.  288,  4  Purd.  3850-1,  pi.  105. 

(1)  Tinal  Judgment  Necessary.     Order  approving  the  bond  of  a 
railroad  company  to  secure  payment  of  damages  to  property  owner  is 
interlocutory  and  not  subject  to  appeal:  Getz  v.  R.  R.,  1  Walk.  427, 
1879;  Slocum's  Ap.,  12  W.  N.  C.  84,  1882;  Twelfth  St.  Market  Co. 
v.  R.  R.,  142  Pa.  580,  1891;  (b)  but  the  sustaining  of  exceptions  to 
report  of  viewers  is  final  where  railroad  has  altered  its  route  since 
report  was  filed :  Beale  v.  R.  R.,  86  Pa.  509,  1878. 

(2)  Appeal  in  Eminent  Domain  Cases.    See  Art.  16,  §8,  Const., 
and  Act  of  1874,  §48  (A),  above. 

§91.     Real  Estate —  (A)  Price  Act — Proceedings.     In 

all  cases  and  proceedings  under  this  act  [the  Price  Act] 
appeals  may  be  taken  to  the  Supreme  (or  Superior)  Court 
from  the  orphans'  court  as  now  provided  by  law  in  other 
cases,  and  in  the  court  of  common  pleas,  as  provided  in 
equity  cases,  in  the  respective  counties  of  the  state.  Act 
April  18,  1853,  §8,  P.  L.  503,  4  Purd.  4028,  pi.  33. 

—  (B)  Quieting  Title — Refusal  of  Rule  or  Issue — Judg- 
ment. The  decree  of  the  court  in  refusing  the  rule  or  issue 
in  any  such  case  and  the  judgment  in  such  issue  [in  pro- 
ceedings in  the  court  of  common  pleas  to  quiet  title  in 
cases  where  right  or  title  or  right  of  possession  of  land  in 
which  corporation  has  acquired  and  abandoned  easement,  is 
disputed]  shall  be  subject  to  appeal  by  either  party  to  the 
Supreme  (or  Superior)  Court,  in  like  manner  as  appeals 
are  allowed  to  judgments  and  decrees  of  the  said  court  of 
common  pleas.  Act  June  10,  1893,  §2>  P-  L.  415,  4  Purd. 
817-8,  pi.  1 60. 

(1)  Superior   Court — Jurisdiction.     For  jurisdiction   of  the  Su- 
perior Court,  see  Chapter  VI,  §108  et  seq.,  below. 

(2)  Practice.    If  court  of  its  own  motion  awards  issue,  and  neither 
party  objects,  appellate  court  will  not  reverse  judgment  on  verdict 

157 


SPECIAL  JURISDICTION  AND  PARTIES. 


§§  92,  93  Recognizances,  Forfeited — Reference  [Chap.  5, 

rendered  at  trial  of  such  issue,  on  account  of  irregularity:  Cambria 
Iron  Co.  v.  Leidy,  226  Pa.  122,  1910. 

§92.  Recognizances,  Forfeited.  The  Supreme  (or  Su- 
perior) Court  of  this  commonwealth  may  hear  appeals  from 
such  orders  or  judgments  of  the  courts  of  common  pleas 
[ordering  recognizances,  forfeited  in  the  court  of  quarter 
sessions,  to  be  levied,  moderated  or  remitted]  on  the  said 
forfeited  recognizances  at  the  next  ensuing  term  after 
such  judgment  given  but  not  afterwards,  and  finally  de- 
cide on  the  same.  Act  Dec.  9,  1783,  §3,  2.  Sm.  L.  86,  2.  Purd. 
1675,  PL  14- 

(1)  Superior   Court — Jurisdiction.     For  jurisdiction   of  the   Su- 
perior Court,  see  Chapter  VI,  §108  et  seq.,  below. 

(2)  Mode  of  Review — When  Appeal  Lies,     (a)  The  proper  mode 
of  review  of  judgment  of  common  pleas  on  forfeited  recognizances 
is  by  writ  of  error;  (b)  appeal  lies  only  to  orders  on  applications  to 
remit  or  moderate  forfeiture :  Com.  v.  Rhoads,  9  Pa.  488,  1848 ;  (c)  no 
appeal  lies  from  order  made  by  quarter  sessions  on  application  to  re- 
mit a  forfeiture.    It  lies  only  when  proceedings  are  in  common  pleas : 
Bross  v.  Com.,  71  Pa.  262,  1872;  Com.  v.  Flomenhaft,  3  Pa.  Super. 
566,  1897;  Com.  v.  Harvey,  36  Pa.  Super.  235,  1908;  (d)  appeal  from 
former  court  is,  in  effect,  merely  a  certiorari:  Com.  v.  Oblender,  135 
Pa.  536,  1890;  Com.  v.  Bird,  144  Pa.  194,  1891;  Com.  v.  Flomenhaft, 
3  Pa.  Super.  566,  1897;  Com.  v.  Harvey,  36  Pa.  Super.  235,  1908. 

(3)  Parties  to  Appeal.    A  prosecutor  cannot  appeal  from  an  order 
remitting  forfeited  bail:  Com.  v.  Shick,  61  Pa.  495,  1869;  Com.  v. 
Trust  Co.,  22  Pa.  Super.  235,  1903. 

(4)  Time  for  Appeal.    The  Act  of  May  19,  1897,  gives  an  appeal 
from  all  judgments,  orders  or  decrees,  within  six  months  of  entry. 
See  §126,  below. 

§93.  Reference  Under  Act  of  1874.  A  writ  of  error  or 
appeal  from  the  final  judgment  of  the  court  [of  common 
pleas  in  proceedings  before  a  referee  under  the  Act  of 

158 


STATUTORY  PROCEEDINGS. 


§§  48-101]  Tax  Assessments — Telegraph  Companies  §§  94,  95 

May  14,  1874,  P.  L.  166,  4  Purd.  4068,  pi.  I,]  may  be  taken 
by  either  party,  in  like  manner  as  in  other  cases  of  a  similar 
kind,  provided  exceptions  were  duly  filed  with  the  referee. 
Act  May  4,  1889,  §i,  P.  L.  80,  4  Purd.  4070-1-2,  pi.  4. 

(1)  Exceptions  Necessary.    Appeal  lies  only  to  final  judgment  on 
exceptions  duly  filed :  Kille  v.  Iron  Works,  134  Pa.  225,  1890. 

(2)  Scope  of  Act.    The  Act  of  1889  affects  merely  the  mode  of  pro- 
cedure and  not  rights  of  parties,  and  applies  to  cases  pending  before 
referee  at  time  of  passage  of  act:  Kille  v.  Iron  Works,  134  Pa.  225, 
1890. 

§94.  Tax  Assessments.  Any  owner  of  real  estate  or 
taxable  property  in  this  commonwealth  may  appeal  from 
the  judgment,  order  or  decree  of  any  court  of  common 
pleas  in  any  matter  affecting  the  assessment  of  taxes  upon 
his  property,  to  the  Supreme  (or  Superior)  Court,  in  the 
same  manner  as  appeals  are  taken  in  other  cases  to  the  said 
Supreme  or  Superior  Court:  Provided,  however,  That  the 
said  appeal  shall  not  prevent  the  collection  of  taxes  com- 
plained of;  but  in  case  the  same  shall  be  reduced,  then  the 
excess  shall  be  returned  to  the  person  or  persons  who  shall 
have  paid  the  same.  Act  June  26,  1901,  §i,  P.  L.  601,  2. 
Purd.  1439,  pi.  19. 

§95.  Telegraph  Companies — Forfeiture  and  Escheat  by 
Quo  Warranto.  From  which  decree  [in  proceedings  in  the 
court  of  common  pleas  by  quo  warranto  for  forfeiture  and 
escheat  of  any  telegraph  line,  franchises,  property,  stocks 
or  bonds  of  a  telegraph  company  for  consolidating  with  or 
acquiring  control  of  a  competing  line]  any  party  interested 
may  appeal  to  the  Supreme  (or  Superior)  Court  at  any 
time  within  six  months  after  such  decree,  and  not  after- 
ward. Act  June  5,  1883,  §3,  P.  L.  84,  4  Purd.  4745,  pi.  32. 

(1)     Snpreme  Court — Jurisdiction.    Under  Act  May  5,  1899,  §104, 

159 


SPECIAL  JURISDICTION  AND  PARTIES. 


§§  96,  97  Toll  Bridges — Townships — Land  Damages  [Chap.  5, 

below,  the  Supreme  Court  has  jurisdiction  of  appeals,  regardless  of 
the  amount  involved,  whenever  the  case  is  brought,  authorized  or  de- 
fended by  the  attorney  general  in  his  official  capacity.  When  the 
attorney  general  does  not  appear  in  the  case,  the  jurisdiction  under 
the  Act  of  1883,  above,  would  seem  to  depend  upon  the  amount  in 
controversy. 

§96.  Toll  Bridges — Purchase  or  Condemnation —  (A) 
By  Municipalities.  Either  party  may,  within  thirty  days, 
after  final  decree  [in  proceedings  by  municipalities  to  pur- 
chase or  condemn  public  toll  bridges  crossing  streams 
within  their  limits]  have  an  appeal  to  the  Superior  or  to 
the  Supreme  Court,  according  to  law.  Act  March  24, 
1909,  §6,  P.  L.  67. 

Either  party  may,  within  thirty  days  after  final  decree, 
[in  proceedings  by  municipalities  to  purchase  or  condemn 
public  toll  bridges  crossing  streams  within  their  limits, 
and  authorizing  said  municipalities  to  contract  with  coun- 
ty commissioners  for  part  payment  of  cost  thereof]  have 
an  appeal  to  the  Superior  or  to  the  Supreme  Court,  accord- 
ing to  law.  Act  March  24,  1909,  §  6,  P.  L.  69,  5  Purd.  5975, 
pi.  215. 

(B)  By  Counties.  Either  party  may,  within  thirty 

days  after  final  decree,  [in  proceedings  by  counties  to  pur- 
chase or  condemn  public  toll  bridges,  crossing  streams 
within  their  limits]  have  an  appeal  to  the  Superior  or  to 
the  Supreme  Court,  according  to  law.  Act  March  24,  1909. 
§  6,  P.  L.  73,  5  Purd.  5974,  pi.  207. 

Bridges  in  Cities.  For  appeal  from  condemnation  of  bridges  in 
cities,  see  §80  (B),  above. 

§97.  Townships — First  Class —  (A)  Land  Damages — 
Highways.  Within  thirty  days  from  the  filing  of  any  re- 
port in  court  [of  quarter  sessions  in  proceedings  to  lay 
out,  widen,  open  and  vacate  streets  and  highways  in  town- 

160 


STATUTORY  PROCEEDINGS. 


§§48-101]  Townships — Land  Damages  §97 

ships  of  the  first  class]  any  party  whose  property  is  taken 
or  injured  may  appeal  and  demand  a  trial  by  jury,  and  any 
party  interested  in  any  assessment  of  damages  or  benefits 
may,  within  thirty  days  after  a  final  decree,  have  an  appeal 
to  the  Supreme  (or  Superior)  Court.  Act  June  7,  1901,  §5, 
P.  L.  510,  i  Purd.  851,  pi.  105. 

—  (B)  Damages  and  Expenses — Connecting  with  Sewer 
of  any  Adjoining  Municipality.     Either  party  may  appeal 
from  the  decision  of  the  court  of  quarter  sessions  [on  re- 
port of  viewers  assessing  damages  and  expenses  for  mak- 
ing connection  to  sewer  of  adjoining  municipality  by  town- 
ship of  the  first  class]  to  the  Superior  Court.    Act  July  17, 
1901,  §2,  P.  L.  668,  i  Purd.  853,  pi.  119. 

—  (C)  Land  Damages — Public  Parks  and  Playgrounds. 
From  such  confirmation  of  the  viewers'  report,  and  from 
linal  judgment  on  the  verdict  in  cases  of  trial  by  jury  [in 
proceedings  by  townships  of  the  first  class  and  boroughs  to 
condemn  realty  for  public  parks  and  playgrounds]  either 
party  may  have  an  appeal  to  the  Superior  Court  or  Su- 
preme Court,  as  in  other  cases.    Act  May  3,  1909,  §10,  P.  L. 
401,  5  Purd.  5821,  pi.  20. 

(1)  Time  for  Appeal.     Permission  given  to  appeal  within  thirty 
days  does  not  take  away  the  right  given  by  Act  May  18,  1897,  (§126, 
below)  to  appeal  within  six  months :  Scranton  Sewer,  213  Pa.  4,  1905. 

(2)  Appeal  in  Eminent  Domain  Cases.     See  Art  16,  §8,  Const., 
and  Act  of  1874,  §48  (A),  above. 

(3)  Superior   Court — Jurisdiction.     For  jurisdiction  of  the   Su- 
perior Court,  see  Chapter  VI,  §108  et  seq.,  below. 

(4)  Jurisdiction  of  Appellate  Courts  Under  Act  of  1901.     The 
provision  that  the  Supreme  Court  shall  have  jurisdiction  of  appeals 
under  the  Act  of  June  7,  1901,  (A),  this  section,  above,  without  re- 
gard to  the  amount  involved,  would  seem  to  violate  Art.  5,  §26  of  the 
Constitution,  §48  (E),  above,  requiring  laws  relative  to  courts  to  be 
general  and  of  uniform  operation ;  but  the  right  of  appeal  in  eminent 
domain  cases  exists  under  Art.  16,  §8  of  the  Constitution,  and  the 

161 
ii 


SPECIAL  JURISDICTION  AND  PARTIES. 


§  98  Trial  by  Court  without  Jury  [Chap.  5, 

Act  of  June  13,  1874,  §48  (A),  above;  and  the  jurisdiction  of  the 
Supreme  or  Superior  Court  would,  it  seems,  attach  according  to  the 
amount  involved,  notwithstanding  the  above  statute. 

(5)     Appeal  from  Auditors'  Settlement.    See  §54  (B),  above. 

§98.  Trial  by  Court  without  Jury —  (A)  Review  of 
Judgment.  The  parties,  by  agreement  filed,  may  in  any 
civil  case  dispense  with  trial  by  jury,  and  submit  the  decis- 
ion of  such  case  to  the  court  having  jurisdiction  thereof, 
and  such  court  shall  hear  and  determine  the  same;  and  the 
judgment  thereon  shall  be  subject  to  writ  of  error  as  in 
other  cases.  Const.,  art.  5,  §27,  i  Purd.  183,  pi.  129. 

The  judgment  [in  cases  submitted  by  agreement  to  de- 
cision of  court  without  jury]  shall  be  subject  to  writ  of 
error  or  of  appeal,  as  in  other  cases  at  law  or  in  equity,  at 
the  option  of  either  party.  Act  April  22,  1874,  §i,  P.  L. 
109,  3  Purd.  3658,  pi.  42. 

—  (B)  Review  on  Exceptions.  If  exceptions  to  the  find- 
ings of  fact  or  conclusions  of  law  be  filed  within  said  thirty 
days,  the  court,  or  the  judge  thereof  who  tried  the  case  in 
vacation,  may,  upon  argument,  order  judgment  to  be  en- 
tered according  to  the  decision  previously  filed,  or  make 
such  modifications  thereof  as  in  justice  and  right  shall  seem 
proper;  subject  always,  nevertheless,  to  review  by  writ  of 
error  or  appeal  to  the  Supreme  (or  Superior)  Court;  such 
writ  of  error  or  appeal  to  be  taken  in  the  time  and  manner 
and  with  the  effect  prescribed  by  law.  Act  April  22,  1874, 
§2,  P.  L.  109,  3  Purd.  3658,  pi.  43. 

(C)  Hearing.  Every  such  case  taken  to  the  Su- 
preme (or  Superior)  Court  upon  writ  of  error,  shall  be 
heard  and  determined  therein  as  writs  of  error  are  therein 
heard  and  determined,  and  every  such  case  taken  to  the 
Supreme  (or  Superior)  Court  by  appeal  shall  be  heard  and 

162 


STATUTORY  PROCEEDINGS. 


§§48-101]  Trustees  §99 

determined  therein,  as  cases  of  appeal  in  equity  proceed- 
ings.   Act  April  22,  1874,  §3,  P.  L.  109,  3  Purd.  3659,  pi.  44. 

(1)  Exceptions  Necessary,     (a)  Appeal  taken  without  filing  excep- 
tions is  premature :  Com.  v.  Mitchell,  80  Pa.  57,  1875 ;  State  M.  F.  Ins. 
Co.  v.  Keef  er,  9  Pa.  Super.  186,  1899 ;  Fleer  v.  Reagan,  24  Pa.  Super. 
170,  1904;  Miller  v.  County,  25  Pa.  Super.  591,  1904;  Wingert  v. 
Teitrick,  31  Pa.  Super.  187,  1906;  McDermott  v.  Blank,  230  Pa.  392, 
1911;   (b)  unless  the  lower  court  so  words  its  order  as  to  raise  the 
presumption  that  final  judgment  is  to  be  entered  without  right  to 
further  hearing  on  exceptions:  Miller  v.  County,  25  Pa.  Super.  591, 
1904. 

(2)  Exceptions  Must  be  Filed  within  Thirty  Days.    Unless  excep- 
tions have  been  filed  within  thirty  days,  no  appeal  will  lie,  and  court 
has  no  power  to  enlarge  time  for  filing.    It  makes  no  difference  that 
other  party  filed  exceptions  within  statutory  time:  Harris  v.  Mercur, 
202  Pa.  313, 1902;  Wingert  v.  Teitrick,  31  Pa.  Super.  187, 1906. 

(3)  Superior   Court — Jurisdiction.     For  jurisdiction  of   the   Su- 
perior Court,  see  Chapter  VI,  §108  et  seq.,  below. 

§99.  Trustees.  Any  person  aggrieved  by  a  definite 
[definitive]  decree  or  judgment  of  any  court  of  common 
pleas,  in  any  case  relating  to  assignees  or  trustees  as  afore- 
said [by  assignment,  conveyance  or  transfer,  or  by  oper- 
ation or  implication  of  law  except  those  amenable  to  the 
orphans'  court]  may  appeal  from  the  same  to  the  Supreme 
(or  Superior)  Court  in  the  proper  district.  Act  June  14, 
1836,  §36,  P.  L.  628,  4  Purd.  4884,  pi.  39. 

If  any  person  or  persons  shall  be  aggrieved  by  any  defi- 
nite [definitive]  sentence,  decree  or  judgment  of  any  [cir- 
cuit court,  district  court  or]  court  of  common  pleas  under 
the  provisions  of  this  act  [to  prevent  the  failure  of  trusts 
by  appointment  of  new  trustees  when  necessary,  provide 
for  the  settlement  of  accounts  of  trustees,  etc.],  it  shall  be 
lawful  for  him  or  them  to  appeal  from  the  same  to  the 

163 


SPECIAL  JURISDICTION  AND  PARTIES. 


§  100  Turnpikes  [Chap.  5, 

Supreme   (or  Superior)   Court.     Act  April   14,   1828,   §5, 
P.  L-  454,  4  Purd.  4917,  pi.  96. 

(1)  Parties.    A  trustee  having  no  beneficial  interest  cannot  appeal : 
Mellon 's  Ap.,  32  Pa.  121,  1858. 

(2)  Exceptions  Necessary.     Appellant  is  confined  to  exceptions 
taken  in  court  below :  Dyott  's  Est.,  2  W.  &  S.  557,  1841. 

(3)  Practice  on  Appeal.    For  practice  as  to  bail,  supersedeas  and 
costs,  see  §48  (D),  above. 

(4)  Superior   Court — Jurisdiction.     For  jurisdiction  of   the   Su- 
perior Court,  see  Chapter  VI,  §108  et  seq.,  below. 

§100.  Turnpikes —  (A)  Opening — Land  Damages — 
Writ  of  Error.  After  final  judgment  [on  trial  by  jury  in 
common  pleas  on  appeal  from  report  of  viewers  appointed 
to  assess  damages  for  property  taken  by  turnpike  compan- 
ies] either  party  may  have  a  writ  of  error  thereto  from  the 
Supreme  (or  Superior)  Court,  in  the  manner  prescribed  in 
other  cases.  Act  April  29,  1874,  §41,  P.  L.  105,  4  Purd. 
4941,  pi.  21. 

—  (B)  Condemnation — Roads  Lying  Wholly  or  hi  Part 
Within  County — Certiorari.    Any  party  aggrieved  by  the 
action  of  the  court  [of  quarter  sessions  in  confirming  or 
dismissing  report  of  viewers  appointed  to  assess  damages 
for  condemnation  of  turnpike]  may  remove  the  proceed- 
ings to  the  [  Supreme]   (Superior)  Court  by  writ  of  cer- 
tiorari  within  twenty  days  after  final  confirmation  or  dis- 
approval.    Act  June  2,  1887,  §6,  P.  L.  308,  4  Purd.  4954, 

Pi-  54- 

—  (C) Writ  of  Error.  The  said  judgment  [of  com- 
mon pleas  on  verdict  of  jury  in  appeal  from  assessment  of 
damages  in  proceedings  to  condemn  turnpike]  shall  be  re- 
viewable  by  the  Supreme  (or  Superior)  Court  upon  writ  of 
error  as  in  other  cases.    Act  June  2.  1887,  §8,  P.  L.  309,  4 
Purd.  4956,  pi.  56. 

164 


STATUTORY  PROCEEDINGS. 


§§48-101]  Turnpikes  §100 

— (D) — Line  Dividing  Two  Counties — Certiorari.  Any 
party  aggrieved  by  the  action  of  the  said  courts,  or  either 
of  them  [in  proceedings  to  condemn  turnpike  located  on 
line  dividing  two  counties],  may  remove  the  proceedings 
to  the  proper  appellate  court  by  writ  of  certiorari  within 
twenty  days  after  final  confirmation  or  disapproval.  Act 
April  28,  1899,  §6,  P.  L.  79,  4  Purd.  4958,  pi.  64. 

— (E) Appeal.  The  said  judgment  [of  the  court  of 

common  pleas  on  appeal  from  report  of  jury  assessing  dam- 
ages in  proceedings  to  condemn  turnpikes  located  on  line 
dividing  two  counties]  shall  be  reviewable  by  the  proper 
appellate  court,  upon  appeal,  as  in  other  cases.  Act  April 
28,  1899,  §8,  P.  L.  79,  4  Purd.  495$,  pi.  67. 

(1)  Time  for  Appeal.     Since  Act  of  May  9,  1889,  (§182,  below) 
makes  the  word  ' '  appeal ' '  include  a  writ  of  certiorari,  and  as  the  Act 
of  May  19,  1897,  (§126,  below)  gives  the  right  in  all  cases  to  appeal 
within  six  months,  it  seems  that  the  mere  permission  given  by  this 
act  to  take  a  writ  of  certiorari  within  twenty  days,  does  not  take 
away  the  right  to  do  so  at  any  time  within  six  months.     See  Scran- 
ton  Sewer,  213  Pa.  4,  1895. 

(2)  Review  Under  Act  of  1887 — Certiorari — Appeal.      (a)  Under 
Act  of  1887,  certiorari  does  not  lie  to  action  of  quarter  sessions  ap- 
pointing a  master  and  jury  of  review.    The  writ  lies  only  after  final 
confirmation  or  disapproval :  Frankf ord  &  Oxford  Turnpike,  21  W. 
N.  C.  346;  S.  C.  45  Leg.  Int.  371,  1888;  (b)  appeal  from  order  of  quar- 
ter sessions  dismissing  exceptions  to  report  of  viewers  is  in  fact  a  cer- 
tiorari, though  called  appeal  by  Act  of  1889,  (§48  (C),  above)  and  ap- 
pellate court  will  consider  only  the  regularity  of  the  record;  review 
of  question  of  damages  must  be  obtained  by  proceeding  in  accord- 
ance with  §8  of  the  act:  Factoryville  &  Abington  Turnpike,  19  Pa. 
Super.  613,  1901;  Chambersburg  &  Bedford  Turnpike,  20  Pa.  Super. 
173,  1902;  Morrison's  Cove  Turnpike,  30  Pa.  Super.  51,  1906. 

(3)  Superior  Court— Jurisdiction.    The  Act  of  June  4, 1895,  (§108, 
below)  gave  the  Superior  Court  jurisdiction  of  all  appeals  from  the 
quarter  sessions  except  cases  involving  the  right  to  public  office. 

165 


SPECIAL  JURISDICTION  AND  PARTIES. 


§  101  Weak-Minded  Persons  [Chap.  5,  §§  48-101] 

§101.  Weak-minded  Persons — Appointment  of  Guar- 
dian. Any  person  aggrieved  by  final  decree  of  the  court 
of  common  pleas  [in  proceedings  for  appointment  of 
guardian  for  alleged  weak-minded  person]  may,  within  one 
year  from  the  time  it  is  entered,  appeal  therefrom  to  the 
Supreme  (or  Superior)  Court  of  the  state,  and  such  court 
may  affirm,  reverse  or  modify  the  decree  of  the  lower  court. 
Act  June  25,  1895,  §9,  P.  L.  301,  2  Purd.  2409,  pi.  112. 

(1)  Time  for  Appeal.  By  Act  of  May  19,  1897,  (§126,  below)  the 
time  limit  for  appeal  is  six  months. 


166 


APPEAL  LIES  TO  WHAT  COURT. 


Chap.  6]  Synopsis  of  Chapter 


CHAPTER  VI. 

TO   WHAT   COURT   APPEAL  LIES. 

§102.    Supreme  Court. 

From  Quarter   Sessions — Cases  Involving  Right  to  Public 

Office. 

§103.        From  Over  and  Terminer — Cases  of  Felonious  Homicide. 
§104.        From  Common  Pleas. 

(A)  Subject  Matter  Exceeding  $1500 — Actions  Brought 

or  Defended  by  Attorney  General. 

(B)  Distribution  Proceedings  where  Appeal  from  Final 

Decree  Lies  to  Supreme  Court. 
§105.        From  Orphans'  Court. 

(A)  Subject  Matter  Exceeding  $1500 — Actions  Brought 

or  Defended  by  Attorney  General. 

(B)  Distribution  Proceedings  where  Appeal  from  Final 

Decree  Lies  to  Supreme  Court. 
§106.        In  Damage  Cases — Joint  Actions  by  Husband  and  Wife — 

Parent  and  Child. 

§107.        In  Disbarment  Proceedings. 
§108.    Superior  Court. 

From   Quarter   Sessions — Cases  Involving  Right   to  Public 

Office  Excepted. 
§109.        From   Oyer   and   Terminer — Cases   of  Felonious   Homicide 

Excepted. 
§110.        From  Common  Pleas — Subject  Matter  not  Exceeding  $1500, 

Except  in  Proceedings  Brought  or  Defended  by  Attorney 

General. 
§111.        From  Orphans'  Court — Subject  Matter  not  Exceeding  $1500, 

Except  in  Proceedings  Brought  or  Defended  by  Attorney 

General. 

§112.        Agreement,  Jurisdiction  by. 
§113.        In  Divorce  Cases. 
§114.        In  Labor  Claims  Under  Act  of  1897. 
§115.         Objection  to  Jurisdiction — Waiver — Cost  of  Certifying. 

167 


APPEAL  LIES  TO  WHAT  COURT. 


§  102  Q.  S.  Cases  Involving  Right  to  Public  Office  [Chap.  6, 

§116.        Jurisdiction  only  Where  Expressly  Given — Exclusive  in  Such 

Cases. 
§117.    Determination  of  Amount  in  Controversy. 

(A)  Realty  and  Chattel  Cases  Determined  by  Certificate  of 

Judge. 

(B)  Certificate  to  be  Filed  in  Certain  Cases. 

(C)  Production  of  Evidence  to  Aid  in  Making  Up  Certificate. 

(D)  Other  Cases  Determined  by  Amount  of  Judgment,  or  by 

Record  of  Claim  in  Case  of  no  Recovery. 
§118.     Consolidation  of  Appeals  in  Certain  Cases. 

(A)  Similar  Questions  Involved. 

(B)  Several  Parties  Uniting  in  Appeal. 

(C)  Proceedings   to   Obtain   Certificate   as  to  Whether 

Appeal  Affects  Entire  Report. 

(D)  Certifying  to  Proper  Court. 

§119.  Stay  of  Proceedings  in  Superior  Court  Pending  Decision  of 
Same  Questions  in  Supreme  Court — Certification  to  Supreme 
Court. 

§120.     Appeal  Erroneously  Taken. 

(A)  To  Supreme  Court. 

(B)  To  Superior  Court. 

§121.    Appeals  from  Decisions  of  Superior  Court. 
§122.    Appeal  Waived  by  Agreement. 

§123.     Proceedings  in   Supreme   Court — Entering  Judgment — Remit- 
ting Record. 

§124.     Certification  by  Superior  Court  Judges. 
§125.    Decisions  of  Supreme  Court  Binding  on  Superior  Court. 

§102.  Supreme  Court — From  Quarter  Sessions — Cases 
Involving  Right  to  Public  Office.  [The  Superior  Court  has 
exclusive  and  final  appellate  jurisdiction  of  all  proceedings 
of  any  kind  in  the  quarter  sessions  or  before  any  judge 
thereof  which  were  formerly  allowed  to  the  Supreme  Court 
by  Acts  of  May  22,  1722,  §§9  and  13,  i  Sm.  L.  138,  2,  Purd. 
1428,  pi.  i,  §§42  (B)  and  43,  above,  substantially  re-enacted 
by  Act  June  16,  1836,  §i,  P.  L.  784,  4  Purd.  4514,  pi.  30, 
§42  (B),  above,],  except  cases  involving  the  right  to  a  pub- 

168 


SUPREME  COURT. 


§§  102-125]  Felonious  Homicide  Cases  §  103 

lie  office,  in  which  cases  the  remedy  by  appeal  to  the  Su- 
preme Court  shall  not  be  affected  by  this  act.  Act  June  24, 
l895>  §7  (a),  P.  L.  212,  2  Purd.  1440,  pi.  25,  4  Purd.  4501, 
pi.  19. 

(1)  Supplementary  Proceedings.    Appeals  in  supplementary  pro- 
ceedings should  be  taken  to  the  Supreme  Court  when  appeal  from 
judgment  in  the  original  proceedings  is  pending  in  that  court:  Com. 
v.  O'Donnell,  7  Pa.  Super.  49,  1898.    See  also  §104  (B),  below. 

(2)  Eight  to  Public  Office,     (a)  Appeal  does  not  lie  to  Supreme 
Court  in  proceedings  for  contempt  of  court  for  refusal  to  testify  in  a 
case  in  quarter  sessions  involving  the  right  to  public  office:  Com.  v. 
Gibbons,  9  Pa.  Super.  527,  1899;   (b)  nor  in  contested  election  case 
where  sole  question  is  liability  for  costs :  Hayes 's  Election,  214  Pa. 
551,  1906;  (c)  appeal  lies  to  Supreme  Court  where  there  is  a  question 
as  to  title  to  office,  such  as  director  of  a  corporation:  Com.  v.  O'Don- 
nell, 7  Pa.  Super.  49,  1898;  (d)  or  right  of  a  warden  or  matron  of  a 
county  prison :  Brower  v.  Kantner,  9  Pa.  Super.  94,  1898. 

§103.  — From  Oyer  and  Terminer — Cases  of  Felon- 
ious Homicide.  In  all  cases  of  felonious  homicide,  and  in 
such  other  criminal  cases  as  may  be  provided  for  by  law,  the 
accused,  after  conviction  and  sentence,  may  remove  the  in- 
dictment, record  and  all  proceedings,  to  the  Supreme  Court 
for  review.  Const.,  art.  5,  §24,  i  Purd.  182,  pi.  126. 

[The  Superior  Court  has  exclusive  and  final  appellate 
jurisdiction  of  all  appeals  which  were  formerly  allowed  to 
the  Supreme  Court,  by  Act  March  31,  1860,  §33,  P.  L.  427, 
2  Purd.  1462,  pi.  82,  §46  (A),  above,  in  all  proceedings  of 
any  kind  in  the  court  of  oyer  and  terminer  and  general  jail 
delivery]  except  cases  of  felonious  homicide,  which  shall 
be  appealed  directly  to  the  Supreme  Court.  Act  June  24, 
^95,  §7  (b),  P.  L.  212,  2  Purd.  1441,  pi.  26,  4  Purd.  4501, 
pi.  20. 

(1)  Disbarment  Proceedings.  The  Act  of  May  5,  1899,  (§107,  be- 
low) directed  that  an  appeal  from  an  order  of  the  oyer  and  terminer 
in  disbarment  proceedings  should  also  be  taken  to  the  Supreme  Court. 

169 


APPEAL  LIES  TO  WHAT  COURT. 


§  104  Supreme  Court — Common  Pleas  Cases  [Chap.  6, 

§104.  — From  Common  Pleas  —  (A)  Subject  Mat- 
ter Exceeding  $1500  —  Actions  Brought,  Authorized 
or  Defended  by  Attorney  General.  [The  Supreme  Court 
was  given  appellate  jurisdiction  of  cases  from  the  com- 
mon pleas  by  Act  May  22,  1722,  §§9  and  13,  I  Sm.  L.  138, 
2  Purd.  1428,  pi.  i,  §§42  (B)  and  43,  above,  re-enacted  by 
Act  June  16,  1836,  P.  L.  784,  4  Purd.  4515,  pi.  30,  §42  (B) 
and  note  (i)  (e),  above.  The  Act  of  June  24,  1895,  P.  L. 
212,  4  Purd.  4498,  pi.  i,  establishing  the  Superior  Court, 
and  the  amendments  thereto,  conferred  on  the  latter  court 
exclusive  and  final  appellate  jurisdiction  of  all  appeals 
which  were  then  allowed  to  the  Supreme  Court  in  the  cases 
there  enumerated,  leaving  the  jurisdiction  of  the  Supreme 
Court  as  to  other  cases  unaltered. 

The  jurisdiction  of  the  Supreme  Court  from  the  common 
pleas  therefore  includes  all  cases  not  referred  to  the  Su- 
perior Court  by  the  following  statutes:] 

It  [the  Superior  Court]  shall  have  exclusive  and  final 
appellate  jurisdiction  of  all  appeals  which  are  now  allowed 
to  the  Supreme  Court  in  the  following  classes  of  cases : 

(c)  Any  action,  claim,  distribution,  or  dispute  of  any 
kind  in  the  common  pleas,  at  law  or  in  equity,  whether 
originating  therein  or  reaching  that  court  by  appeal  or  cer- 
tiorari  from  a  justice  of  the  peace  or  alderman  or  magis- 
trate, if  the  subject  of  the  controversy  be  either  money, 
chattels,  real  or  personal,  or  the  possession  of  or  title  to 
real  property,  and  if  the  amount  or  value  thereof  really  in 
controversy  be  not  greater  than  fifteen  hundred  dollars, 
exclusive  of  costs,  and  if  the  action  be  not  brought,  author- 
ized or  defended  by  the  attorney  general  in  his  official 
capacity.  Act  May  5,  1899,  §i,  P.  L.  248,  2  Purd.  1441,  pi. 
27;  5  Purd.  4501,  pi.  21. 


170 


SUPREME  COURT. 


§§  102-125]  C.  P.  and  O.  C.  Cases  §§  104,  105 

(B)   Distribution    Proceedings    Where    Appeal 

from  Final  Decree  Lies  to  Supreme  Court.  Whenever  any 
appeal  from  any  final  decree  of  any  court  of  common  pleas 
....  upon  any  question  of  distribution,  shall  be  cogniz- 
able by  and  taken  to  the  Supreme  Court,  all  other  ap- 
peals from  the  same  decree  and  involving  the  same  ques- 
tion shall  also  be  taken  to  the  Supreme  Court.  Act  June 
13,  1911,  §i,  P.  L.  889. 

(1)  Jurisdiction  of  Supreme  Court,  (a)  When  no  money  ques- 
tion is  involved  in  mandamus  proceedings,  but  merely  right  to  inspect 
corporate  books,  appeal  lies  to  Supreme  Court:  Neubert  v.  Water  Co., 
26  Pa.  Super.  608,  1904;  (b)  appeals  from  refusal  to  open  judgment 
in  quo  warranto  proceedings  and  from  decree  awarding  peremptory 
mandamus,  lie  to  Supreme  Court :  Com.  v.  0  'Donnell,  7  Pa.  Super.  49, 
1898;  (c)  also  appeal  from  decree  of  common  pleas  in  equity  author- 
izing construction  of  grade  crossings:  Act  June  19,  1871,  P.  L.  1360, 
4  Purd.  3862,  pi.  126;  Penna.  R.  R.  v.  Ry.,  188  Pa.  74,  1899.  As  to 
determination  of  amount  in  controversy  for  purpose  of  deciding  which 
court  has  jurisdiction,  see  §117,  below. 

§105.  —  From  Orphans'  Court  —  (A)  Subject  Mat- 
ter Exceeding  $1500  —  Actions  Brought  or  Defended  by 
Attorney  General.  [The  Act  March  29,  1832,  §59,  P.  L. 
190,  3  Purd.  3383,  pi.  68,  §45,  above,  gave  the  right  of  ap- 
peal from  the  orphans'  court  to  the  Supreme  Court.  The 
Act  June  24,  1895,  P.  L.  212,  4  Purd.  4498,  pi.  i,  establish- 
ing the  Superior  Court,  and  the  amendments  thereto,  con- 
ferred on  the  latter  court  exclusive  and  final  appellate  juris- 
diction of  all  appeals  which  were  then  allowed  to  the  Su- 
preme Court  in  the  cases  there  enumerated,  leaving  the 
jurisdiction  of  the  Supreme  Court  as  to  other  cases  un- 
altered. 

The  jurisdiction  of  the  Supreme  Court  from  the  orphans' 
court,  therefore,  includes  all  cases  not  referred  to  the  Su- 
perior Court  by  the  following  statutes:] 

It  [the  Superior  Court]   shall  have  exclusive  and  final 

171 


APPEAL  LIES  TO  WHAT  COURT. 


§§  105,  106    Supreme  Court — O.  C.  Cases — Joint  Actions,  Damages    [Chap.  6, 

appellate  jurisdiction  of  all  appeals  which  are  now  allowed 
to  the  Supreme  Court  in  the  following  classes  of  cases : 

(d)  Any  single  claim,  any  dispute,  distribution  or  other 
proceedings  in  the  orphans'  court,  if  the  subject  of  the  con- 
troversy be  either  money,  chattels,  real  or  personal,  or  the 
possession  of  or  title  to  real  property,  and  if  also  the 
amount  or  value  thereof  really  in  controversy  in  such  sin- 
gle claim,  dispute  or  other  proceeding  be  not  greater  than 
fifteen  hundred  dollars,  exclusive  of  costs,  and  if  also  the 
claim,  dispute  or  other  proceeding  be  not  brought,  author- 
ized or  defended  by  the  attorney  general  in  his  official 
capacity.  Act  May  5,  1899,  §2,  P.  L.  248,  2  Purd.  1441, 
pi.  28;  4  Purd.  4502.  pi.  22. 

(B)    Distribution    Proceedings    Where    Appeal 

from  Final  Decree  Lies  to  Supreme  Court.  When- 
ever any  appeal  from  any  final  decree  of  any  ....  or- 
phans' court,  upon  any  question  of  distribution,  shall  be 
cognizable  by  and  taken  to  the  Supreme  Court,  all  other 
appeals  from  the  same  decree  and  involving  the  same  ques- 
tion shall  also  be  taken  to  the  Supreme  Court.  Act  June 
13,  1911,  P.  L.  889. 

(1)  Amount  of  Claim.  When  appeal  is  taken  to  the  Supreme 
Court  on  two  distinct  claims,  one  more  and  one  less  than  $1500,  that 
court  will  review  larger  claim  and  remit  smaller  to  Superior  Court: 
Eslen's  Est.,  211  Pa.  215,  1905.  But  see  Act  of  1911,  (B),  above.  As 
to  determination  of  amount  in  controversy  for  purpose  of  deciding 
which  court  has  jurisdiction  on  appeal,  see  §117,  below. 

§106.  —  In  Damage  Cases — Joint  Actions  by  Husband 
and  Wife — Parent  and  Child.  Where  a  joint  action  is 
brought  by  husband  and  wife  for  damages  by  reason  of  an 
injury  suffered  by  the  wife,  or  is  brought  by  parent  and 
child  for  damages  by  reason  of  an  injury  suffered  by  the 
child,  and  several  judgments  are  entered,  if  either  is  greater 

172 


SUPREME  COURT — SUPERIOR  COURT. 


§§  102-126]  Disbarment  Proceedings — Q.  S.  Cases  §§  107,  108 

than  fifteen  hundred  dollars,  appeals  from  both  judgments 
shall  be  taken  to  the  Supreme  Court,  and  not  to  the  Su- 
perior Court.  Act  May  5,  1899,  §5,  P.  L.  248,  2  Purd.  1440, 
pi.  22;  4  Purd.  4503,  pl-  27;  Id.  4517,  pi.  33. 

§107. —  In  Disbarment  Proceedings.  In  all  cases  of  dis- 
barment, by  whatever  court  the  decree  may  be  pro- 
nounced, the  Superior  Court  shall  have  no  jurisdiction 
thereof,  but  the  appeal  shall  be  taken  directly  to  the  Su- 
preme Court.  Act  May  5,  1899,  §5,  P.  L.  248,  2  Purd.  1440, 
pl.  23;  4  Purd.  4503,  pl.  27;  Id.  4517,  pl.  33. 

(1)  Appeals  Prior  to  Act.  Prior  to  Act  of  1899,  appeal  from  order 
of  oyer  and  terminer,  suspending  attorney-at-law,  lay  to  Superior 
Court:  Shoemaker's  Ap.,  175  Pa.  159,  1896. 

§108.  Superior  Court  —  From  Quarter  Sessions  — 
Cases  Involving  Right  to  Public  Office  Excepted.  It  [the 
Superior  Court]  shall  have  exclusive  and  final  appellate 
jurisdiction  of  all  appeals  which  are  now  allowed  to  the 
Supreme  Court  [by  Act  May  22,  1722,  §§9  and  13,  i  Sm. 
L.  138,  2  Purd.  1428,  pl.  i,  §§42  (B)  and  43,  above,  substan- 
tially re-enacted  by  Act  June  16,  1836,  §i,  P.  L.  784,  4 
Purd.  4514,  pl.  30,  §42  (B),  above],  in  the  following  classes 
of  cases : 

(a)  All  proceedings  of  any  kind  in  the  court  of  quarter 
sessions  of  the  peace  or  before  any  judge  thereof,  except 
cases  involving  the  right  to  a  public  office,  in  which  cases 
the  remedy  by  appeal  to  the  Supreme  Court  shall  not  be 
affected  by  this  act.  Act  June  24,  1895,  §7,  P.  L.  212,  2 
Purd.  1440,  pl.  25;  4  Purd.  4501,  pl.  14. 

(1)  Supplementary  Proceedings.  Appeals  in  supplementary  pro- 
ceedings should  be  taken  to  Supreme  Court  where  appeal  from  judg- 
ment in  original  proceeding  is  pending  in  that  court :  Com.  v.  0  'Don- 
nell,  7  Pa.  Super.  49,  1898. 

173 


APPEAL  LIES  TO  WHAT  COURT. 


§  108  (2) -(3),  §  109      Superior  Court^-Q.  S.  and  O.  and  T.  Cases  [Chap.  6, 

(2)  Scope  of  Appellate  Jurisdiction,     (a)  The  Superior  Court  has 
the  same  appellate  jurisdiction  that  Supreme  Court  had  in  enumer- 
ated classes  of  cases,  and  no  greater :  Colwyn  Boro.  v.  Tarbotton,  1  Pa. 
Super.  179, 1896;  Com.  v.  Brewing  Co.,  1  Pa.  Super.  627, 1896;  Dober- 
neck's  Ap.,  1  Pa.  Super.  637,  1896;  Com.  v.  Tragic,  4  Pa.  Super.  159, 
1897;  Thompson  v.  Preston,  5  Pa.  Super.  154,  1897;  Com.  v.  Rogers, 
15  Pa.  Super.  461,  1900;  Walker  Twp.  Overseers  v.  Knisely,  17  Pa. 
Super.  415,  1901;  Galeton  Poor  Dist.  v.  Poor  Dist.,  18  Pa.  Super. 
428,   1901;    Springdale   Twp.,   20   Pa.   Super.   381,   1902;    (b)    juris- 
diction  of   Superior   Court   extends   to   proceedings  in   quarter  ses- 
sions authorized  by  subsequent  legislation:  Springdale  Twp.,  20  Pa. 
Super.  381,  1902;  (c)  jurisdiction  of  Superior  Court  in  appeals  from 
quarter  sessions,  where  right  to  public  office  is  not  involved,  is  ex- 
clusive :  Quay 's  Case,  189  Pa.  517,  1899 ;  (d)  appeal  from  quarter  ses- 
sion in  election  contest,  where  matter  in  controversy  is  liability  for 
costs  and  does  not  involve  right  to  public  office,  lies  to  Superior  Court : 
Hayes's  Case,  214  Pa.  551,  1906;   (e)  also  appeals  in  liquor  license 
cases:  Com.  v.  Brewing  Co.,  1  Pa.  Super.  627,  1896;  (f)  appeal  from 
conviction  for  hawking  and  peddling  lies  to  Superior  Court  although 
constitutional  question  is  involved:   Com.  v.  Dunham,  174  Pa.  436, 
1896;  Com.  v.  Gladfelter.  174  Pa.  438,  1896;  (g)  also  appeals  in  road 
cases:  Middletown  Road,  15  Pa.  Super.  167,  1900;  (h)  and  in  habeas 
corpus  proceedings :  Com.  v.  Butler,  19  Pa.  Super.  626,  1902. 

(3)  Right  to  Office,     (a)  In  appeals  where  no  money  value  is  in- 
volved, but  mere  right  of  title  to  office,  jurisdiction  is  in  Supreme 
Court :  For  example :  the  right  of  a  director  of  a  corporation  to  of- 
fice: Com.  v.  O'Donnell,  7  Pa.  Super.  49,  1898;  (b)  or  right  of  warden 
and  matron  of  county  prison:  Browner  v.  Kantner,  9  Pa.  Super.  95, 
1898;  affirmed  in  190  Pa.  182,  1899;  (c)  or  right  to  inspect  books  of 
corporation:  Neubert  v.  Water  Co.,  26  Pa.  Super.  608,  1904;  (d)  juris- 
diction of  Superior  Court  extends  to  proceeding  for  contempt  of  court 
consisting  of  refusal  to  testify  in  case  involving  right  to  public  office : 
Com.  v.  Gibbons,  9  Pa.  Super.  527,  1899;  (e)  where  in  contested  elec- 
tion case  only  question  is  liability  for  costs  appeal  lies  to  Superior 
Court :  Hayes 's  Election,  214  Pa.  551,  1906. 

§  109.  —  From  Oyer  and  Terminer — Cases  of  Felonious 
Homicide  Excepted.  It  [the  Superior  Court]  shall  have 
exclusive  and  final  appellate  jurisdiction  of  all  appeals 

174 


SUPERIOR  COURT. 


§§  102-126]  Common  Pleas  Cases  §§  109, 110 

which  are  now  allowed  to  the  Supreme  Court  [by 
the  Constitution,  art.  5,  §24,  I  Purd.  182,  pi.  126,  above, 
§103,  and  Act  March  31,  1860,  §33,  P.  L.  427,  2  Purd.  1462, 
pi.  82,  §46  (A)  above],  in  the  following  classes  of  cases: 

(b)  All  proceedings  of  any  kind  in  the  court  of  oyer  and 
terminer  and  general  jail  delivery,  except  cases  of  feloni- 
ous homicide,  which  shall  be  appealed  directly  to  the  Su- 
preme Court.     Act  June  24,  1895,  §7,  P.  L.  212,  2  Purd. 
1441,  pi.  26;  4  Purd.  4501,  pi.  20. 

(1)  Jurisdiction  Exclusive.  Jurisdiction  of  the  Superior  Court, 
with  the  exception  named  in  the  act,  is  exclusive:  Shoemaker's  Ap., 
175  Pa.  159,  1896. 

§110.  — From  Common  Pleas — Subject  Matter  not 
Exceeding  $1500,  Except  in  Proceedings  Brought  or  De- 
fended by  Attorney  General.  It  [the  Superior  Court]  shall 
have  exclusive  and  final  appellate  jurisdiction  of  all  appeals 
which  are  now  allowed  to  the  Supreme  Court  [by  Acts 
May  22,  1722,  §§9  and  13,  I  Sm.  L.  138,  2  Purd.  1428,  pi.  I, 
§§42  (B)  and  43,  above,  re-enacted  by  Act  June  16,  1836, 
§i,  P.  L.  784,  4  Purd.  4514,  pi.  30,  §42,  (B)  and  note  (i) 
(e),  above],  in  the  following  classes  of  cases: 

(c)  Any  action,  claim,  distribution,  or  dispute  of  any 
kind  in  the  common  pleas,  at   law  or   in  equity,   whether 
originating  therein  or  reaching  that  court  by  appeal  or  cer- 
tiorari,  from  a  justice  of  the  peace  or  alderman  or  magis- 
trate, if  the  subject  of  the  controversy  be  either  money, 
chattels,  real  or  personal,  or  the  possession  of  or  title  to 
real  property,  and  if  also  the  amount  or  value  thereof  really 
iti  controversy  be  not  greater  than  fifteen  hundred  dollars, 
exclusive  of  costs,  and  if  also  the  action  be  not  brought, 
authorized  or  defended  by  the    attorney    general   in    his 
official  capacity.    Act  May  5,  1899,  §i,  P.  L.  248,  2  Purd. 
1440,  pi.  27;  4  Purd.  4501,  pi.  21. 

175 


APPEAL  LIES  TO  WHAT  COURT. 


§110(1)-(6),§111      Superior  Court^C.  P.  and  0.  C.  Cases         [Chap.  6, 

(1)  General  Scope  of  Act.    This  section  was  intended  to  provide  a 
criterion  for  jurisdiction  in  two  classes  of  actions,  to  wit,  issues  involv- 
ing title  or  possession  of  specific  property,  real  or  personal,  and  those 
involving   payment   of   money;   and   when   defendant   in   action  for 
breach  of  warranty  sues  plaintiff  on  promissory  note,  and  both  actions, 
by  agreement,  are  tried  together,  resulting  in  verdict  for  defendant  in 
first  action  for  less  than  $1500,  judgment  is  for  payment  of  money  and 
appeal  lies  to  Superior  Court :  Spring  City  Brick  Co.  v.  Mfg.  Co.,  221 
Pa.  385,  1908. 

(2)  Review  of  Certiorari  to  Justice,     (a)  This  does  not  allow  Su- 
perior Court  to  review  judgment  of  the  common  pleas  on  certiorari 
from  a  justice  of  the  peace :  Colwyn  Boro.  v.  Tarbotton,  1  Pa.  Super. 
179, 1896;  Carroll  v.  Barnes  &  Erb  Co.,  11  Pa.  Super.  590,  1899;  Crum- 
ley v.  Coal  Co.,  13  Pa.  Super.  231,  1900;  Alexander  v.  Goldstein,  13 
Pa.   Super.  518,  1900;  Phoenix  Iron  Works  Co.  v.   Mullen,  25  Pa. 
Super.  547,  1904;  Fry  v.  Spatz,  29  Pa.  Super.  592,  1905;  Adams  v. 
Berge,  30  Pa.  Super.  422,  1906 ;  Huntington  etc.,  R.  R.  v.  Fluke,  32  Pa. 
Super.  126, 1906 ;  Allegheny  L.  &  T.  Co.  v.  Gundling,  33  Pa.  Super.  621, 
1907;   (b)  but  appeal  lies  from  the  refusal  of  the  common  pleas  to 
allow  an  appeal  from  magistrate:  Thompson  v.  Preston,  5  Pa.  Super. 
154,  1897. 

(3)  Jurisdiction  by  Habeas  Corpus.     Where  the  amount  is  not 
within  the  jurisdiction  of  the  Superior  Court,  it  cannot  acquire  juris- 
diction by  issuing  a  writ  of  habeas  corpus  instead  of  certiorari:  Com. 
v.  McAleese,  10  Pa.  Super.  286,  1899. 

(4)  Appeals  Taken  Before  Passage  of  Act.    All  appeals  involving 
less  than  $1500,  taken  before  but  not  perfected  by  certiorari  until  after 
the  erection  of  the  Superior  Court,  lie  to  that  court :  Christner  v.  John, 
171  Pa.  527, 1895;  Ruffner  v.  Hooks,  171  Pa.  531, 1895. 

(5)  Mandamus  Proceedings.    See  §77,  note  (3),  above. 

(6)  Distribution  Proceedings,    See  §104  (B). 

§  in.  —  From  Orphans'  Court — Subject  Matter  not  Ex- 
ceeding $1500,  Except  in  Proceedings  Brought  or  Defend- 
ed by  Attorney  General.  It  [the  Superior  Court]  shall 
have  exclusive  and  final  appellate  jurisdiction  of  all  ap- 
peals which  are  now  allowed  to  the  Supreme  Court  [by 

176 


SUPERIOR  COURT. 


§§  102-126]  0.  C.  Cases — Jurisdiction  by  Agreement  §§  111,  112 

Act  March  29,  1832,  §59,  P.  L.  190,  3  Purd.  3383,  pi.  68, 
§45,  above],  in  the  following  classes  of  cases: 

(d)  Any  single  claim,  any  dispute,  distribution  or  other 
proceedings  in  the  orphans'  court,  if  the  subject  of  the 
controversy  be  either  money,  chattels,  real  or  personal,  or 
the  possession  of  or  title  to  real  property,  and  if  also  the 
amount  or  value  thereof  really  in  controversy  in  such  single 
claim,  dispute  or  other  proceeding  be  not  greater  than 
fifteen  hundred  dollars,  exclusive  of  costs,  and  if  also  the 
claim,  dispute  or  other  proceeding  be  not  brought,  author- 
ized or  defended  by  the  attorney  general  in  his  official 
capacity.  Act  May  5,  1899,  §2,  P.  L.  248,  2  Purd.  1441,  pi. 
28 ;  4  Purd.  4502,  pi.  22. 

(1)  Single  Claims,     (a)    Jurisdiction  cannot  be  taken  away  by 
lumping  the  claims  of  different  appellants:  Jennings 's  Est.,  195  Pa. 
406, 1900;  Samson's  Est.,  201  Pa.  590,  1902;  May's  Est.  22  Pa.  Super. 
77,  1903;  (b)  and  where  appeal  is  taken  to  Supreme  Court  on  two  dis- 
tinct claims  one  more  and  one  less  than  $1500,  that  court  will  review 
the  larger  claim  and  remit  the  smaller  to  the  Superior  Court:  Eslen's 
Est.,  211  Pa.  215,  1905.    But  see  Act  June  13,  1911,  §105  (B),  above. 
See  also  §117  and  notes  for  rules  governing  determination  of  amount 
in  controversy. 

(2)  Distribution  Proceedings.    See  §105  (B). 

§112.  —  Agreement,  Jurisdiction  By.  [The  Superior 
Court  shall  have  exclusive  and  final  appellate  jurisdiction 
in]  any  case  whatever,  civil  or  criminal,  at  law  or  in  equity 
or  in  the  orphans'  court,  except  felonious  homicide,  in 
which  the  parties  or  their  attorneys  file  a  stipulation  in  the 
proper  court  below,  at  any  stage  of  the  proceedings,  agree- 
ing that  the  case  may  be  heard  and  decided  by  the  Superior 
Court,  although  the  case  would  otherwise  have  been  ap- 
pealable directly  to  the  Supreme  Court.  Act  June  24,  1895, 
§7,  P.  L.  212,  2  Purd.  1442,  pi.  32;  4  Purd.  4503,  pi.  24. 

177 


APPEAL  LIES  TO  WHAT  COURT. 


§§  113-115    Superior  Court — Divorce  and  Labor  Cases — Waiver     [Chap.  6, 

§113.  —  In  Divorce  Cases.  Appeals  in  proceedings  for 
divorce  ....  shall  be  taken  to  the  Superior  Court. 
Act  May  5,  1899,  §7,  P.  L.  248,  2  Purd.  1442,  pi.  31 ;  4  Purd. 
4503,  pi.  26. 

(1)  Jurisdiction,  (a)  Prior  to  this  act,  appeals  in  divorce  lay  only 
to  the  Supreme  Court:  Rosenberry  v.  Rosenberry,  180  Pa.  221,  1897; 
(b)  appeal  from  decree  allowing  counsel  fees  or  alimony  in  divorce  lies 
to  the  Superior  Court  though  allowance  is  more  than  $1500:  Hartje 
v.  Hartje,  222  Pa.  371,  1908. 

§114.     —  In  Labor  Claims  Under  Act  of  1897.     .     .     . 

Joint  appeals  by  labor  claimants  under  the  Act  of  June  15, 
1897,  P.  L.  154,  shall  be  taken  to  the  Superior  Court.  Act 
May  5,  1899,  §7,  P.  L.  248,  2  Purd.  1442,  pi.  31;  4  Purd. 
4503,  pi.  26. 

§115.  —  Objection  to  Jurisdiction — Waiver — Cost  of 
Certifying.  Whenever  an  appeal  is  taken  to  the  Superior 
Court,  the  appellee  shall  be  held  to  have  waived  objection  to 
the  jurisdiction  of  that  Court,  unless  he  file  with  the  pro- 
thonotary  thereof  an  objection  on  this  ground,  on  or  prior 
to  the  hearing  of  the  appeal  by  the  Superior  Court.  If  the 
objection  is  made,  the  Superior  Court  shall  hear  and  decide 
it  speedily,  and  if  it  is  sustained  and  the  appeal  is  certified 
to  the  Supreme  Court,  the  prothonotary  of  the  Superior 
Court  shall,  in  addition  to  the  appeal  costs  already  paid,  be 
paid  by  the  appellant  the  sum  of  three  dollars  as  further 
costs  in  the  cause.  Act  May  5,  1899,  §I:>  P-  L.  248,  2  Purd. 
1442,  pi.  33;  4  Purd.  4504,  pi.  31. 

(1)  Certifying  Case  to  Supreme  Court.  This  section  should  be 
read  in  connection  with  §9  of  the  Act  of  1895  (§120) ;  and  when  objec- 
tion is  made  in  due  time,  Superior  Court  will  not  quash  but  will  cer- 
tify issue  to  Superior  Court :  Neubert  v.  Water  Co.,  26  Pa.  Super.  608, 
1904.  For  form  of  objection,  see  Appendix,  §28. 


I78 


APPEAL  LIES  TO  WHAT  COURT. 


§§  102-125]    Superior  Court  Exclusive — Amount  in  Controversy  §§  116,  117 

§116.  —  Jurisdiction  Only  Where  Expressly  Given — 
Exclusive  in  Such  Cases.  This  act  does  not  apply  in  any 
respect  to  any  proceeding  unless  it  is  hereinbefore  made  re- 
viewable  by  the  said  Superior  Court  but  all  such  proceed- 
ings shall  continue  to  be  reviewable  by  the  Supreme  Court 
in  the  same  manner  and  to  the  same  extent  as  is  nowor  may 
be  hereafter  provided  by  law.  And  no  proceeding  of  any 
kind  which  is  hereinbefore  made  reviewable  by  the  Su- 
perior Court,  shall  be  removed  directly  from  the  court  be- 
low to  the  Supreme  Court  by  any  form  of  appeal  or  writ  of 
error.  Act  June  24,  1895,  §14,  P.  L.  212,  2  Purd.  4503, 
pi.  25. 

§117.  Determination  of  Amount  in  Controversy.  The 
amount  or  value  really  in  controversy  shall  be  determined 
as  follows : 

—  (A)  Realty  and  Chattel  Cases  Determined  by  Certifi- 
cate of  Judge.  In  actions  of  ejectment,  either  legal  or 
equitable,  and  in  all  other  actions  or  issues  in  the  common 
pleas  or  in  the  orphans'  court  that  involve  the  possession 
of  or  the  title  to  real  property,  or  chattels,  real  or  personal, 
the  judge  hearing  the  case  shall  certify  whether  the  value 
of  the  land  or  of  the  interest  or  of  the  property  really  in 
controversy,  is  greater  than  fifteen  hundred  dollars,  and 
his  certificate  shall  be  conclusive  proof  of  such  value  for 
the  purpose  of  this  act.  Act  May  5,  1899,  §4,  P.  L.  248,  2 
Purd.  1442,  pi.  30;  4  Purd.  4502,  pi.  23. 

— (B)  Certificate  to  be  Filed  in  Certain  Cases.  In  man- 
damus proceedings,  in  actions  of  ejectment,  either  legal  or 
equitable,  and  in  all  other  actions  or  issues  in  the  common 
pleas  or  in  the  orphans'  court,  which  involve  the  pos- 
session of,  or  title  to,  real  property,  or  chattels,  real  or  per- 
sonal, the  appellant  shall  be  required  to  file  with  his  appeal 

179 


APPEAL  LIES  TO  WHAT  COURT. 


§  117  Amount   in   Controversy  [Chap.  6, 

a  certificate  of  the  judge  hearing  the  case  that  the  value 
of  the  land  or  of  the  interest  or  of  the  property  really  in 
controversy  is  greater  than  fifteen  hundred  dollars.  Su- 
preme Court  Rule  23. 

—  (C)  Production  of  Evidence  to  Aid  in  Making  up  Cer- 
tificate.   If  the  facts  on  which  to  base  the  certificate  do  not 
appear  in  the  course  of  the  trial  or  hearing,  the  judge  shall 
require  the  parties  to  produce  evidence  thereof  for  his  in- 
formation in  order   to   make   such   certificate.      Supreme 
Court  Rule  24. 

—  (D)  Other  Cases  Determined  by  Amount  of  Judg- 
ment, or  by  Record  of  Claim  in  Case  of  no  Recovery.    In 
any  suit,   distribution  or  other  proceeding  in  the  common 
pleas  or  orphans'  court,  if  the  plaintiff  or  claimant  recov- 
ers damages  either  for  a  tort  or  for  a  breach  of  contract, 
the  amount  of  the  judgment,  decree  or  award  shall  be  con- 
clusive proof  of  the  amount  really  in  controversy,  but  if  he 
recovers  nothing  the  amount  really  in  controversy  shall  be 
determined  by  the  amount  of  damages  claimed  in  the  state- 
ment of  claim  or  in  the  declaration.    Act  May  5,  1899,  §4, 
P.  L.  248,  2  Purd.  1442,  pi.  30;  4  Purd.  4502,  pi.  23. 

(1)  Certificate  of  Amount  in  Controversy,    (a)  Appeal  from  judg- 
ment in  ejectment,  on  case  stated,  where  there  is  no  certificate  of 
court  below  as  to  value  of  land  in  controversy,  will  not  be  enter- 
tained by  Supreme  Court,  although  in  case  stated  it  is  agreed  that 
such  value  exceeds  $1500:  Matthews  v.  Rising,  194  Pa.  217,  1899;  (b) 
although  a  continuance  may  be  granted  so  that  certificate  may  be  filed : 
Beringer  v.  Lutz,  43  P.  L.  J.  (0.  S.)  106,  1895;  (c)  prior  to  the  adop- 
tion of  Rule  24,   [formerly  Rule  21]  if  the  judge  certified  that  he 
could  not  determine  the  value  of  the  property,  the  appeal  was  taken 
to  the  Supreme  Court:  Sedlinger's  Ap.,  1  Pa.  Super.  221,  1896. 

(2)  Amount  of  Decree  or  Judgment  Conclusive,    (a)  On  appeal  by 
either  party  from  decree  or  judgment  for  payment  of  money,  jurisdic- 
tion is  determined  solely  by  amount  of  such  decree  or  judgment,  and 
nothing  else  will  be  considered  by  appellate  court:  Prentice  v.  Han- 

180 


AMOUNT  IN  CONTROVERSY. 


§§102-125]        Decree  or  Judgment — Amount  Claimed          §  117,  2  (b)-(3) 

cock,  204  Pa.  128,  1902;  Astwood  v.  Wanamaker,  209  Pa.  103,  1904; 
Green  v.  Duffee,  231  Pa.  393, 1911;  (b)  where  purchase  price  of  realty 
is  less  than  $1500,  appeal  from  decree  confirming  sale  Jies  to  Superior 
Court:  Walker's  Est.,  25  Pa.  Super.  256,  1904;  (c)  where  in  action 
for  a  breach  of  warranty  the  defendant  brings  a  separate  action 
against  plaintiff  on  note  and  both  actions  are  tried  together  and  ver- 
dict given  for  defendant  for  less  than  $1500,  appeal  lies  to  Superior 
Court:  Spring  City  Brick  Co.  v.  Mfg.  Co.,  221  Pa.  385,  1908;  (d) 
where  judgment  is  less  than  $1500,  jurisdiction  is  in  Superior  Court, 
though  final  decision  of  case  may  settle  right  to  future  sums  exceed- 
ing $1500 :  Hosack  v.  Grill,  197  Pa.  370,  1900 ;  (e)  where  creditor  of 
decedent  is  awarded  more  than  $1500,  appeal  by  contesting  legatee 
lies  to  Supreme  Court,  though  his  interest  therein  is  less  than  $1500: 
May's  Est.,  218  Pa.  64,  1907;  (f)  where  undisputed  claim  is  for  more 
than  $1500,  but  award  is  less  because  fund  was  insufficient  to  pay  in 
full  owing  to  prior  liens,  appeal  questioning  right  to  priority  lies  to 
Superior  Court :  Green  v.  Duffee,  231  Pa.  393,  1911. 

(3)  Amount  Claimed — Criterion.  The  amount  fixed  by  interlocu- 
tory proceedings  determines  the  amount  in  controversy,  where  judg- 
ment is  entered  for  defendant  and  plaintiff  appeals:  (a)  as  where 
claim  is  for  larger  sum  but  verdict  is  for  smaller  sum,  subject  to  point 
reserved:  Peters  v.  Garner,  183  Pa.  65,  1897;  (b)  or  award  of  referee 
is  for  smaller  sum:  Weaver  v.  Cone,  189  Pa.  298,  1899;  (c)  on  mo- 
tion for  injunction,  sum  to  be  accounted  for  determines  jurisdiction 
on  appeal:  Makof  v.  Sherman,  17  Dist.  55,  1907;  (d)  where  judgment 
for  want  of  sufficient  affidavit  of  defence  has  been  refused,  and  sum 
claimed  in  plaintiff's  statement  was  less  than  $1500  at  time  of  suit, 
but  by  reason  of  accrued  interest  exceeded  that  amount  when  judg- 
ment was  refused  and  appeal  taken,  jurisdiction  on  appeal  is  in  Su- 
perior Court:  Com.  v.  Magee,  213  Pa.  443,  1906;  (e)  also  where  ver- 
dict is  for  $1500  and  judgment  is  subsequently  entered  by  court  for 
amount  of  verdict,  with  interest:  Hartman  v.  Pulley  Co.,  38  Pa. 
Super.  587,  1909;  (f)  amount  involved  in  warrant  of  arrest  and  ha- 
beas corpus  proceedings  controls:  Com.  v.  McAleese,  10  Pa.  Super. 
286,  1899;  (g)  where  amount  of  claim  is  less  than  $1500,  Superior 
Court  has  jurisdiction  of  appeal  though  defendant  set  up  counter 
claim  which  was  more  than  $1500  in  excess  of  plaintiff's  claim:  Samuel 
T.  Sota,  224  Pa.  432,  1909. 


181 


APPEAL  LIES  TO  WHAT  COURT. 


§117  ( 4 ) - ( 6) ,  §  118  Amount  in  Controversy — Consolidation  of  Apis.    [Ch.  6, 

(4)  Aggregate  Claims,     (a)  Where  entire  fund  of  over  $1500  is 
claimed  by  receiver,  who  appeals  from  decree  of  distribution  dividing 
it  among  other  claimants  in  smaller  amounts,  jurisdiction  is  in  Su- 
preme Court:  Reynolds  v.  Lumber  Co.,  175  Pa.  437,  1896;  (b)  where 
two  appeals  are  taken  by  different  appellants  from  same  decree  and 
each   claim   is   less   than   $1500,    though   the   two    aggregate    larger 
amount,  jurisdiction  is  in  Superior  Court:  Staib's  Est.,  188  Pa.  238, 
1898;  Jennings 's  Est.,  195  Pa.  406,  1900;  Samson's  Est.,  201  Pa.  590, 
1902;   (c)   where  creditor  of  decedent  is  awarded  more  than  $1500, 
appeal  by  contesting  legatee  lies  to  Supreme  Court  though  his  interest 
therein  is  less  than  $1500;  May's  Est.,  218  Pa.  64,  1907. 

(5)  Appeals  to  Both  Courts.    Where  same  claimant  presents  to  or- 
phans' court  two  separate  claims  against  an  estate,  one  over  and  the 
other  under  $1500,  and  both  are  disallowed,  separate  appeals  must  be 
taken  to  Supreme  Court  and  Superior  Court  respectively :  Eslen  's  Est., 
211  Pa.  215, 1905.    But  see  Act  June  13, 1911,  §104  (B)  and  §105  (B), 
above,  providing  that  where  same  question  is  involved  all  appeals 
shall  be  taken  to  Supreme  Court  if  latter  has  jurisdiction  of  one 
appeal. 

(6)  Allegation  as  to  Jurisdiction  Necessary,     (a)  Appeal  will  not 
be  certified  from  Superior  Court  to  Supreme  Court,  on  petition  of  ap- 
pellant which  does  not  allege  that   amount  in  controversy  exceeds 
$1500,  and  where  appellee  has  filed  no  objection  to  jurisdiction :  Hog- 
sett  v.  Iron  &  Steel  Co.,  15  Pa.  Super.  474,  1900. 

§118.  Consolidation  of  Appeals  in  Certain  Cases—  (A) 
Similar  Questions  Involved.  Where  any  appeal  is  taken 
to  the  Supreme  Court  from  the  action  of  any  court  confirm- 
ing the  report  of  viewers,  [assessing  benefits  or  damages 
for  streets,  bridges,  etc.],  or  any  part  thereof,  and  an  appeal 
is  also  taken  to  the  Superior  Court  from  the  same  report 
or  any  part  thereof,  and  the  appeals  in  both  cases  are  sub- 
stantially the  same,  and  in  which  the  same  questions  are  in- 
volved, it  shall  be  lawful  for  the  Superior  Court  to  certify 
the  said  appeal  to  the  Supreme  Court,  to  be  heard  with  the 
other  appeals  from  the  same  report,  involving  the  same 
questions.  And  it  shall  be  lawful  for  the  Supreme  Court  to 

182 


CONSOLIDATION  OF  APPEALS. 


§§  102-125]    Similar    Questions    Involved — Parties — Certificate  §  118 

consolidate  the  said  appeals,  and  to  hear  the  same  as  one 
case.  And  where  several  appeals  are  taken  from  the  con- 
firmation of  the  same  report,  either  to  the  Superior  or  the 
Supreme  Court,  the  appellate  court  may  consolidate  the 
appeals,  where  the  grounds  of  appeal  are  similar  and  the 
same  questions  involved.  Act  April  18,  1905,  §3,  P.  L. 
198,  5  Purd.  5948,  pi.  62. 

—  (B)  — Several  Parties  Uniting  in  Appeal.    It  shall  be 
lawful  for  several  parties  to  unite  and  join  in  a  single  ap- 
peal from  the  confirmation  of  the  report  of  viewers,  [as- 
sessing benefits  or  damages  for  streets,  bridges,  etc.]  or 
any  parts  thereof,  either  to  the  Superior  or  Supreme  Court, 
where  grounds  of  appeal  are  similar  and  the  same  questions 
involved;  but  the  uniting  of  the  appellants  shall  not  unite 
the  amounts,  or  change  the  jurisdiction.   When  the  appeal, 
if  taken  by  each  appellant  singly,  would  be  to  the  Superior 
Court,  then  the  joint  appeal  shall  be  to  the  said  court;  but 
if  the  appeal  of  any  one  joint  appellant,  if  taken  singly, 
would  be  to  the  Supreme  Court,  then  the  joint  appeal  shall 
be  to  the  said  court.     If  any  appeal  has  been  taken  to  the 
Supreme  Court,  any  other  party,  without  regard  to  the 
amount  involved,  may  appeal  to  the  same  court,  and  join  in 
the  said  appeal,  in  case  the  grounds  of  appeal  are  similar 
and  the  same  questions  are  involved.    Act  April  18,  1905, 
§4,  P.  L.  198,  5  Purd.  5948,  pi.  63. 

—  (C) Proceedings  to  Obtain  Certificate  as  to 

Whether  Appeal  Affects  Entire  Report.     This  act  shall 
apply  to  appeals  already  taken,  where  the  same  have  not 
been  argued  or  disposed  of.     The  proper  municipality  or 
any  party  interested  may,  by  notice  or  rule  upon  the  appel- 
lant, in  any  case,  cause  a  statement  or  copy  of  the  specifi- 
cations of  error  or  grounds  of  appeal  to  be  filed  in  the  court 
below;  upon  which  the  said  court,  or  judge  thereof  in  va- 

183 


APPEAL  LIES  TO  WHAT  COURT. 


§§  118-120  Certification — Appeal  Erroneously  Taken  [Chap.  6, 

cation,  shall  certify  whether  the  appeal  taken  does  or  does 
not  affect  the  entire  report,  in  the  manner  and  with  the  ef- 
fect as  set  forth  in  section  two  of  this  act  [providing  for 
suspension  of  absolute  confirmation:  5  Purd.  5947,  pi.  60]. 
Act  April  18,  1905,  §  5,  P.  L.  198.  5  Purd.  5948,  pi.  64. 

—  (D) Certifying  to  Proper  Court.     Should  any 

appeal,  under  this  act  or  the  act  to  which  this  is  a  supple- 
ment, be  made  to  the  wrong  appellant  court,  it  shall  be  the 
duty  of  the  said  court  to  certify  the  appeal  to  the  court  to 
which  the  appeal  should  originally  have  been  taken.  Act 
April  1 8,  1905,  §  5,  P.  L.  198,  5  Purd.  5948,  pi.  64. 

§119.  Stay  of  Proceedings  in  Superior  Court  Pending 
Decision  of  Same  Questions  in  Supreme  Court — Certifica- 
tion to  Supreme  Court.  Where  it  shall  be  made  to  appear 
to  the  Superior  Court  that  the  same  questions,  and  those 
only,  are  raised  on  an  appeal  to  that  court  as  are  raised  on 
an  appeal  pending  in  the  Supreme  Court,  the  Superior 
Court  may  stay  all  proceedings  before  them  until  the  de- 
cision by  the  Supreme  Court  of  the  appeal  there  pending, 
or  may  certify  said  cause  to  the  Supreme  Court,  with  the 
same  effect  as  if  originally  properly  taken  thereto.  Act 
May  5,  1899,  §  10,  P.  L.  248,  2  Purd.  1443,  pi.  36. 

(1)  Stay  of  Proceedings.  Proceedings  will  not  be  suspended  when 
appeal  in  Supreme  Court  is  not  a  supersedeas  and  it  is  not  shown  that 
only  the  same  questions  are  involved  in  the  two  appeals :  Harris 's  Pe- 
tition, 15  Pa.  Super.  471,  1900. 

120.  Appeal  Erroneously  Taken —  (A)  To  Supreme 
Court. — If  an  appeal  is  erroneously  taken  directly  to  the 
Supreme  Court  in  any  of  the  classes  of  cases  made  review- 
able  by  the  Superior  Court,  the  Supreme  Court  shall  not 
quash  the  appeal,  but  shall  remit  the  case,  at  the  costs  of 
the  appellant,  to  the  Superior  Court  for  hearing  and  deci- 

184 


APPEAL  LIES  TO  WHAT  COURT. 


§§  102-125]  Appeals  from  Superior  Court  §§  120, 121 

sion.    Act  June  24,  1895,  §9,  P.  L.  212,  2  Purd.  1443,  pi.  38; 
4  Purd.  4503,  pi.  29. 

—  (B)  To  Superior  Court.  If  an  appeal  is  erroneously 
taken  to  the  Superior  Court  in  any  case  which  is  appealable 
directly  to  the  Supreme  Court,  the  Superior  Court  shall 
not  quash  the  appeal,  but  shall  certify  the  case,  at  the  cost 
of  the  appellant,  to  the  Supreme  Court  for  hearing  and  de- 
cision. Act  June  24,  1895,  §9,  P.  L.  212,  2  Purd.  1443,  pi. 
39;  4  Purd.  4503,  pi.  30. 

(1)  Appeal  from  Claim  of  Different  Amounts.    When  an  appeal 
is  taken  to  the  Supreme  Court  from  decree  of  orphans'  court  disal- 
lowing two  separate  claims,  one  over  and  the  other  less  than  $1500, 
the  Supreme  Court  will  review  the  larger  claim  and  remit  the  other 
to  the  Superior  Court;  Eslen's  Est.,  211  Pa.  215, 1905.    But  see  Act  of 
June  13, 1911,  §§  104  (B)  and  105  (B),  above. 

(2)  Objection  to  Jurisdiction  Necessary — Practice,     (a)  An  ap- 
peal will  not  be  certified  to  the  Supreme  Court  unless  the  appellee  ob- 
jects to  the  jurisdiction  under  §11  of  Act  May  5,  1899,  P.  L.  248,  4 
Purd.  4504,  pi.  31,  (§115,  above),  or  the  petition  of  appellant  alleges 
that  the  amount  in  controversy  exceeds  $1500  and  the  appeal  was  er- 
roneously taken :  Hogsett  v.  Iron  &  Steel  Co.,  15  Pa.  Super.  474,  1900 ; 
(b)  but  objection  must  be  made  in  due  time:  McFadden  v.  McFadden, 
211  Pa.  599,  1905;  (c)  where  Superior  Court  certifies  case  which  has 
already  been  affirmed  by  Supreme  Court,  latter  will  quash  appeal  and 
direct  judgment  in  lower  court  to  be  altered  so  as  to  show  it  is  Su- 
preme Court  judgment :  Melon  Street,  192  Pa.  331,  1899. 

§121.  Appeals  from  Decisions  of  Superior  Court — 
When  Appeal  Lies.  In  any  action  or  proceeding  whatever 
above  committed  to  the  final  and  exclusive  decision  of  the 
said  [Superior]  Court,  there  may  still  be  an  appeal  from  its 
judgment  to  the  Supreme  Court: 

First :  If  the  jurisdiction  of  the  Superior  Court  is  in  is- 
sue; or 

Second:  If  the  case  involves  the  construction  or  applica- 


APPEAL  LIES  TO  WHAT  COURT. 


§121  (1)  (2)  Appeal  From  Superior  Court  [Chap.  6, 

tion  of  the  Constitution  of  the  United  States  or  of  any 
statute  or  treaty  of  the  United  States ;  or 

Third:  If  the  case  involves  the  construction  or  applica- 
tion of  the  Constitution  of  Pennsylvania;  or 

Fourth :  If  the  appeal  to  the  Supreme  Court  be  especially 
allowed  by  the  Superior  Court  itself  or  by  any  one  Justice 
of  the  Supreme  Court.  Act  June  24,  1895,  §7,  P.  L.  212, 
2  Purd.  1444,  pi.  40;  4  Purd.  4506,  pi.  48;  4517,  pi.  35. 

(1)  Appeal  Lies  to  Superior  Court  in  First  Instance,    (a)  Appeal 
cannot  be  taken  directly  to  the  Supreme  Court  merely  because  a  con- 
stitutional question  is  involved:  Com.  v.  Dunham,  174  Pa.  436,  1896; 
Com.  v.  Gladf elter,  174  Pa.  438,  1896 ;  (b)  and  the  constitutional  ques- 
tion must  be  an  open  one:  Boyle's  License,  190  Pa.  577,  1899. 

(2)  Special    Allowances    Necessary — Form    of    Petition — When 
Granted,    (a)  Unless  it  clearly  appears  from  the  record  that  the  case 
comes  within  one  of  the  exceptions  named,  there  must  be  a  special 
allowance    of    appeal:    Melon    Street,    182    Pa.    397,    1897;    Boyle's 
License,    190    Pa.    577,    1899;    (b)    the    petition    should   be    accom- 
panied by  copy  of  paper  books  and  opinion  of  Superior  Court,  and 
it  should  set  forth  clearly  and  distinctly  the  reasons  therefor   [for 
form,  see  Appendix,  §27]  and  should  be  filed  with  the  prothonotary  of^ 
the  Supreme  Court  to  be  submitted   to   the   court:   Boyle 's  license, 

"190  Pa,  577,  1899;  Watl-Uarber  (Jo.  v.  Groves,  193  Pa.  475,  1899; 
(c)  following  the  principles  laid  down  in  Am.  Construction  Co.  v.  Ky. 
Co.,  148  U.  S.  372,  special  allowance  will  be  granted  only  in  cases 
of  peculiar  gravity  and  general  importance,  or  to  secure  uniformity  of 
decision.  The  Supreme  Court  will  look^only  to  character  of  ques- 
tions  involved:  Kraemer  v.  Trust  Co.,  173  Pa.  416,  1896;  (d)  where 
appeal  was  heard  in  the  Superior  Court  before  five  judges  only  and 
judgment  was  concurred  in  by  three  judges,  a  minority  of  the  court, 
with  two  dissenting,  the  Supreme  Court  allowed  an  appeal  and  re- 
versed the  judgment,  although  no  question  of  general  importance  was 
involved:  Harris  v.  Sharpies,  202  Pa.  243,  1902;  (e)  appeal  will  not 
be  granted  on  ground  of  mistake  in  remedy:  Becker  v.  Ry.,  195  Pa. 
502,  1900 ;  (f )  where  there  has  been  an  inadvertent  error  of  counsel  in 
presenting  case  in  Superior  Court  remedy  is  by  application  to  that 
court  and  not  appeal:  Phila.  v.  Penna.  Co.,  214  Pa.  138,  1906. 

186 


APPEALS  FROM  SUPERIOR  COURT. 


§§  102-125]        Special    Allowance — Waiver — Proceedings  §§  122, 123 

For  procedure  on  application  for  allowance,  see  §§  135  to  138,  below. 
See  also  §124,  providing  for  certification  to  Supreme  Court,  by  Su- 
perior Court  judges,  of  cases  involving  difficult  or  important  questions. 

(3)  Special  Allowance — Constitutional  Question,  (a)  The  act  con- 
templates only  actual,  open  and  unsettled  constitutional  questions: 
Boyle's  Liquor  License,  190  Pa.  557,  1899;  (b)  and,  unless  a  constitu- 
tional question  clearly  appears  from  the  record,  there  must  be  a  special 
allowance:  Melon  Street,  182  Pa.  399,  1897.  (c)  The  better  practice 
is  to  present  a  petition  for  allowance  in  all  cases  so  as  to  obtain  the 
decision  of  the  court  on  the  preliminary  question  whether  or  not  a 
constitutional  question  is  involved,  and,  if  so,  whether  such  question 
is  an  open  one.  Where  an  appeal  was  taken  without  allowance  by  the 
Supreme  Court  under  the  impression  that  it  was  a  matter  of  right 
(the  constitutional  question  appearing  in  the  "  Statement  of  Ques- 
tion Involved"  in  the  Superior  Court),  on  petition  the  Supreme 
Court  allowed  an  appeal  but  not  an  appeal  nunc  pro  tune:  West 
Chester  v.  Postal  Telegraph-Cable  Co.,  No.  320,  Jan.  3.  1909,  manu- 
script case. 

§122.  —  Appeal  Waived  by  Agreement.  But  in  any 
case  whatever  in  the  said  Superior  Court,  without  regard 
to  the  questions  or  the  amount  which  may  be  involved,  if 
the  parties  or  their  attorneys  file  a  stipulation  at  any  stage 
of  the  proceedings,  either  below  or  in  the  Superior  Court, 
that  the  decision  of  the  said  Court  shall  be  final,  no  appeal 
therefrom  shall  be  taken  or  allowed  upon  any  ground, 
either  by  the  Superior  Court  or  by  any  Justice  of  the  Su- 
preme Court.  Act  June  24,  1895,  §7,  P.  L.  212,  2  Purd. 
1444,  pi.  41 ;  4  Purd.  450?,  pi-  49;  451?,  P1-  36. 

(1)     Jurisdiction  by  Agreement.    See  §112,  above. 

§123.  —  Proceedings  in  Supreme  Court— Entering 
Judgment — Remitting  Record.  Whenever  a  case  is  ap- 
pealed to  the  Supreme  Court  from  the  Superior  Court,  the 
appeal  shall  be  taken  from  the  judgment  of  the  Superior 
Court,  but  the  whole  proceeding  shall  be  brought  thereby 

187 


APPEAL  LIES  TO  WHAT  COURT. 


§§  123,  124  Appeal  from  Superior  Court — Proceedings  [Chap.  6, 

within  the  jurisdiction  and  power  of  the  Supreme  Court, 
who  may  enter  therein  such  judgment,  order  or  decree  as 
may  be  just,  except  that  it  may  not  increase  (although  it 
may  reverse)  a  sentence  upon  an  indictment,  and  who  may 
thereupon  send  the  record  either  to  the  Superior  Court  or 
directly  to  the  court  below,  as  the  Supreme  Court  may  con- 
sider advisable.  Act  June  24,  1895,  §9,  P.  L.  212,  2  Purd. 
1444,  pi.  42 ;  4  Purd.  4507,  pi.  50. 

(1)  Cross  Appeals — Jurisdiction.    Where  on  cross  appeals  the  Su- 
perior Court  decides  one  appeal  against  plaintiff  and  the  other  against 
defendant,  and  defendant  alone  appeals  to  the  Supreme  Court,  the 
latter  court  can  consider  only  the  question  involved  in  defendant's 
appeal:  Price  v.  Lancaster  Co.,  189  Pa.  95,  1899. 

(2)  Remitting  Record.    See  §20  of  Act  May  19,  1897,  §244,  below. 

(3)  Review  on  Appeal.    See  §228,  below. 

§124.  —  Certification  by  Superior  Court  Judges.  If 
any  four  of  the  Judges  of  the  Superior  Court,  whose  duty  it 
is  to  decide  any  matter  coming  before  that  court,  shall  cer- 
tify that,  in  their  judgment,  the  questions  involved  in  any 
case  are  so  difficult  or  important  as  to  make  it  expedient 
that  the  case  should  be  decided  by  the  Supreme  Court,  the 
case  containing  such  questions  shall  be  certified  to  the  Su- 
preme Court  for  full  consideration  and  decision,  though 
otherwise  within  the  exclusive  jurisdiction  of  the  Superior 
Court,  but  such  certification  shall  not  be  made  until  after 
the  case  shall  have  been  heard  and  decided  and  the  opinion 
of  the  court  and  any  dissent  therefrom  shall  have  been 
duly  filed.  Act  June  24,  1895,  §10,  P.  L.  212,  2  Purd.  1445, 
pi.  43;  4  Purd.  4507,  pi.  51. 

(1)  Question  Raised  on  Motion  to  Quash.  Where  questions  raised 
on  motion  to  quash  are  so  difficult  and  important  as  to  make  it  ex- 
pedient that  they  should  be  decided  by  the  Supreme  Court,  the  Su- 
perior Court  will  certify  the  case  on  such  questions:  Melon  Street, 
9  Pa.  Super.  18,  1898. 

188 


APPEAL  LIES  TO  WHAT  COURT. 


§§  102-125]  Supreme  Court  Decision  Binding  §  125 

§125.  D-ecisions  of  Supreme  Court  Binding  on  Superior 
Court.  Upon  any  question  whatever  before  the  said  [Su- 
perior] Court  the  decision  of  the  Supreme  Court  shall  be 
received  and  followed  as  of  binding  authority.  Act  June 
24,  1895,  §10,  P.  L.  212,  2  Purd.  1445,  pi.  44;  4  Purd.  4507, 
Pi-  53- 

(1)  Supreme  Court  Decision  Binding,  (a)  The  Superior  Court 
will  not  consider  question  decided  by  Supreme  Court  on  substantially 
the  same  evidence  on  prior  appeal:  Collins  v.  Busch,  15  Pa.  Super. 
255,  1900;  (b)  nor  has  it  power  to  review  action  of  Supreme  Court 
in  opening  orphans'  court  adjudication  and  allowing  additional  testi- 
mony to  be  taken:  DeHaven's  Est.,  41  Pa.  Super.  382,  1910. 


189 


TIME  FOR  TAKING  APPEALS. 


§  126  Appeals  from  Lower  Courts  [Chap.  7, 

CHAPTER  VII. 

TIME  FOR  TAKING  APPEALS. 

§126.  Appeals  from  Lower  Courts. 

§127.  No  Exemptions  Allowed. 

§128.  Appeals  from  Superior  Court. 

§129.  Computation  of  Time  Under  Statutes. 

§126.  Appeals  from  Lower  Courts.  No  appeal  shall  be 
allowed  in  any  case  unless  taken  within  six  calendar 
months  from  the  entry  of  the  sentence,  order,  judgment  or 
decree  appealed  from.  Act  May  19,  1897,  §4,  P.  L.  67,  2 
Purd.  1433,  pi.  3. 

(1)  Appeal  Taken  after  Expiration  of  Time — Quashing,  (a)  Ap- 
peal not  taken  within  time  limited  by  statute  is  too  late,  and  will  be 
quashed:  Young's  Petition,  9  Pa.  215,  1848;  Penna.  Central  Ins.  Co. 
v.  Gaus,  91  Pa.  103,  1879;  Bair  v.  Black,  10  W.  N.  C.  156,  1881;  Weil 
v.  Frauenthal,  103  Pa.  317,  1883 ;  Brown  v.  School  Dist.,  1  Mona.  Ill, 
1888;  Mercer  School  Dist.  v.  Cummins,  1  Mona.  Ill,  1888;  Wilkins- 
burg  Boro.,  131  Pa.  365,  1889;  Lowenstein  v.  Ins.  Co.,  132  Pa.  410, 
1890;  Blockley  Turnpike  Co.'s  Pet.,  140  Pa.  177,  1891;  Roaring  Brook 
Twp.  Road,  140  Pa.  632,  1891;  Page  v.  McNaughton,  2  Pa.  Super.  519, 
1896;  Cassville  Boro.  Road,  4  Pa.  Super.  511,  1897;  Miller  v.  Lash,  4 
Pa.  Super.  292,  1897;  Frazier's  Est.,  188  Pa.  415,  1898;  Mehaffey  v. 
Fink,  13  Pa.  Super.  534,  1900;  Farrel  v.  Ry.,  27  Pa.  Super.  127,  1905; 
(b)  praecipe  dated  and  mailed  on  last  day  but  not  received  by  prothon- 
otary  till  next  day,  is  too  late  and  appeal  will  be  quashed:  Bair  v. 
Black,  10  W.  N.  C.  156, 1881 ;  (c)  where  time  has  expired  no  appeal  lies 
from  refusal  to  open  the  decree :  Keim  's  Ap.,  27  Pa.  42,  1856 ;  Lowen- 
stein v.  Ins.  Co.,  132  Pa.  410,  1890;  (d)  where  time  for  appeal  has 
expired,  decree  will  not  be  set  aside  on  ground  that  Supreme  Court 
has  since  decided  question  differently  in  another  proceeding:  Pulaski 
Ave.  Case,  220  Pa.  276,  1908;  (e)  time  runs  from  entry  of  judgment, 
though  it  appears  jury  fee  was  not  paid  until  subsequent  thereto,  at 

100 


APPEALS  FROM  LOWER  COURT. 


§§  126-9]  Computation  of  Time  §  126  (2)  (3) 

which  time  judgment  was  again  entered:  Jones  v.  Coal  Co.,  227  Pa. 
509,  1910;  see  also  notes  (3)  and  (5)   (a),  this  section. 

(2)  General  Provision  not  Affected  by  Right  to  Appeal  Sooner. 
Acts  giving  right  to  appeal  within  thirty  days  do  not  take  away  right 
to  appeal  within  six  months:  Scranton  Sewer  Case,  213  Pa.  4,  1904. 

(3)  Computation  of  Time,     (a)  Time  is  computed  from  date  of 
final  judgment  or  decree  not  from  date  of  verdict:  Camp  v.  Welles, 
11  Pa.  206,  1849;  Miller's  Est.,  159  Pa.  575,  1894;  Pottsville  Bank  v. 
Cake,  12  Pa.  Super.  61,  1899;  Farrel  v.  Ry.,  27  Pa.  Super.  127,  1905; 
Rively  v.  Ry.,  228  Pa.  9,  1910 ;  (b)  the  same  rule  holds  if  it  is  entered 
in  vacation:  Dawson's  Ap.,  15  Pa.  480,  1851;   (c)  the  day  on  which 
judgment  is  entered  is  excluded:  Sims  v.  Hampton,  1  S.  &  R.  411, 
1815;  Ege's  Ap.,  2  Watts.  283,  1834;  Cromelien  v.  Brink,  29  Pa.  522, 
1858  (see  §129,  below) ;  (d)  if  last  day  falls  on  Sunday,  appeal  may 
be  entered  on  Monday:  Goswiler's  Est.,  3  P.  &  W.  200,  1831;   (e) 
where  court  below  allows  exceptions  to  be  filed  nunc  pro  tune  which 
are  subsequently  dismissed  and  final  decree  entered,  statute  begins 
to  run  from  that  date:  Hinnershitz  v.  Traction  Co.,  206  Pa.  91,  1903; 

if  a  successful  party  in  court  below  expresses  desire  to  appeal  in 
case  he  should  lose  on  appeal  of  his  opponent,  practice  is  merely  to 
reverse  judgment  and  send  record  back  to  court  below  to  enter  such 
judgment  as  it  should  have  entered  in  first  instance;  time  for  appeal 
by  party  will  then  begin  to  run  from  such  judgment :  Hughes  v.  Miller, 
192  Pa.  365,  1899;  Hawn  v.  Stoler,  22  Pa.  Super.  307,  1903;  McGee- 
han  v.  Hughes,  217  Pa.  121,  1907;  S.  C.  223  Pa.  524,  1909;  Hardon- 
court  v.  Iron  Co.,  225  Pa.  379, 1909  fag)  but  where  right  to  appeal  has 
accrued  by  entry  of  judgment  or  decree  against  a  party,  he  must  take 
his  appeal  within  six  months  from  that  date,  notwithstanding  appeal 
has  been  taken  by  other  party:  Pittsburg  Wagon  Works'  Est.,  204 
Pa.  435,  1903;  (h)  and  appeal  from  decree  of  orphans'  court  must  be 
taken  within  statutory  time  from  that  date  and  not  from  refusal  to 
open  decree:  Miller's  Est.,  159  Pa,  575, 1894;  see  also  §74,  n.  (1)  (b), 
(c),  as  to  appeals  from  opening  or  refusing  to  open  judgments  at 
law;  (i)  but  when  court  refuses  to  strike  off  void  judgment,  appeal 
may  be  taken  from  refusal,  and  limitation  begins  to  run  then :  Clarion 
&c.  R.  R.  v.  Hamilton,  127  Pa.  1,  1889;  Crescent  Twp.  Road,  18  Pa. 
Super.  160,  1901;  (j)  a  month  generally  means  calendar  month: 
Moore  v.  Houston,  3  S.  &  R.  168,  1817;  Shapley  v.  Garey,  6  S.  &  R. 
539,  1821;  Thomas  v.  Shoemaker,  6  W.  &  S.  179,  1843;  (k)  time  in 

191 


TIME  FOR  TAKING  APPEALS. 


§126  (4)(a)-(q)        Effect  of  Subsequent  Proceedings  [Chap.  7, 

road  case  is  computed  from  date  of  order  opening  road,  and  not  from 
refusal  to  vacate  such  order:  Bethel  Twp.  Road,  44  Pa.  Super.  96, 
1910;  (1)  see  also  note  (1)  (e),  this  section. 

(4)  Effect  of  Subsequent  Proceedings,  (a)  Rule  to  rescind  order 
in  equity  or  subsequent  rule  taken  to  reinstate  said  rule  will  not 
stop  running  of  statute :  Lowenstein  v.  Ins.  Co.,  132  Pa.  410,  1890 ;  (b) 
nor  motion  to  open  judgment  or  decree :  Gillespie  v.  Campbell,  1  Sad. 
145,  1885;  Clarion  &c.  R.  R.  v.  Hamilton,  127  Pa.  1,  1889;  Miller's 
Est.,  159  Pa.  575,  1894;  (c)  nor  proceedings  to  set  aside  judgment: 
Pottsville  Nat.  Bank  v.  Cake,  12  Pa.  Super.  61,  1899;  (d)  nor  to  strike 
off  voidable  judgment:  Clarion  &c.  R.  R.  v.  Hamilton,  127  Pa.  1,  1889; 
(e)  Act  May  20, 1891,  P.  L.  101,  2  Purd.  1439,  pi.  15,  (§74,  above)  has 
not  changed  this:  Mayer  v.  Brimmer,  15  Pa.  Super.  451,  1900;  (f) 
nor  petition  to  set  aside  confirmation  of  report  of  auditors  on  account 
of  assignee  for  benefit  of  creditors:  Keim's  Ap.,  27  Pa.  42,  1855;  (g) 
nor  pendency  of  rule  to  show  cause  why  road  proceedings  should  not 
be  set  aside:  Winter  Ave.,  23  Pa.  Super.  353,  1903;  (h)  nor  rule  or 
petition  for  rehearing:  Barlott  v.  Forney,  187  Pa.  301,  1898;  Haller's 
Case,  44  Pa.  Super.  41,  1910;  (i)  nor  motion  for  rehearing  on  decree 
distributing  proceeds  of  assignee's  sale  where  there  is  no  stay  of  pro- 
ceedings pending  motion:  Frazier's  Est.,  188  Pa.  415,  1898;  (j)  nor 
motion  to  file  exceptions  nunc  pro  tune  after  confirmation  of  viewers' 
report:  Cassville  Boro.  Road,  4  Pa.  Super.  511,  1897;  (k)  nor  appeal 
by  opposite  party  which  is  still  pending  and  undetermined:  Pitts- 
burg  Wagon  Works'  Est.,  204  Pa.  435,  1903;  (1)  nor  bill  of  review 
in  orphans'  court:  Sherwood's  Est.,  206  Pa.  465,  1903;  (m)  nor  by 
motion  to  dismiss  decree  incorporating  borough  after  expiration  of 
time :  Morton  Boro.,  15  Pa.  Super.  466,  1900 ;  (n)  nor  motion  to  quash 
writ  of  fi.  fa. :  Weil  v.  Frauenthal,  103  Pa.  317,  1883 ;  (o)  nor  motion 
to  strike  off  order  of  confirmation  of  report  of  jury  of  view  in  road 
cases,  by  one  who  had  notice  of  proceedings  from  beginning:  Salem 
Twp.  Road,  103  Pa.  250, 1883;  Wilkins  Twp.  Road,  4  Sadler  299, 1886; 
Saucon  Twp.  Supervisors  v.  Brodhead,  5  Sadler  587,  1887;  Adams  _ 
Twp.  Road,  130  Pa.  190,  1889;  North  Franklin  Twp.  Road,  8  Pa. 
Super.  358,  1898:  Winter  Ave.,  23  Pa.  Super.  353,  1903;  (p)  but  the 
court  has  power  to  stay  all  proceedings  including  the  running  of  the 
statute,  pending  decision  on  rule  to  take  appeal  in  forma  pauperis 
taken  prior  to  expiration  of  six  months:  Schrenkeisen  v.  Kishbaugh, 
162  Pa.  45,  1894;  (q)  an  order  refusing  to  take  off  a  compulsory  non- 
192 


APPEALS  FROM  LOWER  COURT. 


§§126-9]  No   Exemptions  Allowed        §  126  (4)  (q)-(6),  §  127 

suit  is  final  and  appeal  must  be  taken  within  statutory  period  from 
that  time:  Farrel  v.  Ry.,  27  Pa.  Super.  127,  1905;  (r)  but  order  tak- 
ing off  voluntary  non-suit  is  not  final  and  may  be  considered  on  ap- 
peal from  final  judgment  though  date  of  appeal  is  more  than  six 
months  after  date  of  said  order:  Heilman  v.  McKinstry,  18  Pa.  Super. 
70,  1901;  (s)  where  judgment  for  defendant  n.  o.  v.  is  reversed  and 
judgment  is  entered  against  him,  time  for  appeal  dates  from  entry  of 
such  judgment:  McGeehan  v.  Hughes,  223  Pa.  524,  1909;  (t)  a  void 
judgment  is  no  judgment  at  all  and  may  be  stricken  from  the  records 
at  any  time:  Clarion  &c.  R.  R.  v.  Hamilton,  127  Pa.  1,  1889. 

(5)  Entry  of  Judgment  Necessary,    (a)  Appeal  taken  before  entry 
of  judgment  on  case-stated  or  verdict  will  be  quashed:  Harper  v. 
Roberts,  22  Pa.  194,  1853;  Kimmel  v.  Johnson,  18  Pa.  Super.  429, 
1901;  Phila.  v.  Miller,  27  Pa.  Super.  11,  1904;  Wolff  v.  Wilson,  25  Pa. 
Super.  266,  1904;  (b)  or  before  sentence  is  entered:  Marsh  v.  Com., 
16  S.  &  R.  319,  1827;  Com.  v.  Penrod,  1  W.  N.  C.  65,  1874;  (c)  or  if 
no  judgment  or  decree  of  any  kind  has  been  directed  to  be  entered  by 
lower  court;  Watkins  v.  Hughes,  206  Pa.  526,  1903;  (d)  or  judgment 
has  been  entered  without  authority :  Com.  v.  Mitchell,  80  Pa.  57,  1875 ; 
McGlue  v.  Phila.,  105  Pa.  236,  1884.     See  also  cases  §43,  note  (1), 
above,  and  notes  (1)  (e),  (3)  (a)  and  (6),  this  section. 

(6)  Premature  Appeals,    (a)  Writ  of  error  is  premature  when  pro- 
ceedings are  ancillary  to  undecided  suit:  Cake  v.  Cake,  106  Pa.  472, 
1884;   (b)   or  where  taken  before  attachment  issued  against  sheriff 
who  has  been  ordered  to  pay  money  into  court :  Franklin  Twp.  v. 
Osier,  91  Pa.  160,  1879;    (c)   or  where  taken  in  proceedings  under 
Lateral  Railroad  Act  from  order  directing  bond  to  be  filed,  before 
viewers  have  reported:  Lake  Erie  Limestone  Co.'s  Petition,  188  Pa. 
509,  1898;   (d)  or  from  order  dissolving  partnership  and  appointing 
receiver,  but  without  stating  account:  Pantall  v.  Mclntyre,  197  Pa. 
520,  1901;  (e)  or  where  judgment  has  not  been  entered  on  case-stated 
or  verdict:  see  note  (5),  this  section;  see  also  Interlocutory  Orders 
and  Decrees  in  notes  to  §§43  and  46,  above. 

§127.  No  Exemptions  Allowed.  Hereafter  there  shall 
not  be  any  exemptions  in  favor  of  any  person  from  the  Acts 
of  Assembly  limiting  the  time  within  which  writs  of  error. 


193 
13 


TIME  FOR  TAKING  APPEALS. 


§  128,  129  From  Superior  Court — Computation  of  Time  [Chap.  7, 

appeals  or  certiorari  must  be  sued  out.    Act  May  9,  1889, 
§3,  P.  L.  158,  2.  Purd,  1434,  pi.  4. 

(1)  Extension  of  Time.  While  court  has  no  power  to  extend  time, 
yet  if  rule  is  taken,  within  time,  for  appeal  in  forma  pauperis,  court 
may  stay  all  proceedings  and  running  of  statute  pending  decision  on 
rule :  Schrenkeisen  v.  Kishbaugh,  162  Pa.  45,  1894. 

§128.  Appeals  from  Superior  Court.  An  appeal  from 
the  Superior  Court  to  the  Supreme  Court  must  be  taken 
and  perfected  within  three  calendar  months  from  the  entry 
of  the  order,  judgment  or  decree  of  the  Superior  Court. 
Act  May  19,  1897,  §4,  P.  L.  67,  2  Purd.  1434,  pi.  3. 

(1)  Perfecting  Appeal — Computation  of  Time  Where  Special  Al- 
lowance is  Required.  In  computing  the  three  calendar  months  within 
which  an  appeal  must  be  taken  from  the  Superior  Court,  the  time  that 
the  application  for  a  special  allowance  is  pending  in  the  Supreme 
Court  will  be  deducted.  But  the  petition  for  allowance  must  be  pre- 
sented within  three  months,  and,  if  allowed,  notice  will  be  given  by  the 
prothonotary,  and  the  praecipe  for  certiorari  must  be  promptly  filed 
and  the  appeal  perfected  within  a  reasonable  time:  Platt-Barber  Co. 
v.  Groves,  193  Pa.  475,  1899:  See  §167,  note  (1),  for  decisions  as  to 
time  within  which  appeals  must  be  perfected. 

§129.  Computation  of  Time  Under  Statutes.  Where 
by  any  existing  law  or  rule  of  court,  or  by  any  law  or  rule 
of  court  that  may  hereafter  be  enacted  and  made,  the  per- 
formance or  doing  of  any  act,  duty,  matter,  payment  or 
thing  shall  be  ordered  and  directed,  and  where  any  court 
shall,  by  special  or  other  order,  direct  the  performance  or 
doing  of  any  act,  matter,  payment,  sentence  or  decree,  and 
the  period  of  time  or  duration  for  the  performance  or  doing 
thereof  shall  be  prescribed  and  fixed,  such  time  in  all  cases 
shall  be  so  computed  as  to  exclude  the  first  and  include  the 
last  days  of  any  such  prescribed  or  fixed  period,  or  duration 
of  time:  Provided,  That  whenever  the  last  day  of  any  such 

194 


TIME  FOR  TAKING  APPEALS. 


§§  126-9]  Computation  of  Time  §  129 

period  shall  fall  on  Sunday,  or  on  any  day  made  a  legal  holi- 
day by  the  laws  of  this  commonwealth,  or  of  the  United 
States,  such  day  shall  be  omitted  from  the  computation. 
Act  June  20,  1883,  §i,  P.  L.  136,  4  Purd.  4759,  pi.  3. 

(1)     Computation  of  Time.    See  §126,  note  (3),  above. 


195 


ENTRY  OF  APPEAL 


§  130  Name  of  Writ  [Chap.  8, 


CHAPTER  VIII. 

ENTRY  OF  APPEAL CERTIORARI FILING  RECORD. 

§130.    Appeal,  Entry  of. 
Name  of  Writ. 
§131.        Praecipe. 

§132.        Filing— Affidavit  as  to  Delay,  etc. 
§133.        Rule  to  Appeal  and  Plead. 
§134.        Fees. 

(A)  Prothonotary  of  Appellate  Court. 

(B)  Prothonotary  or  Clerk  of  Lower  Court. 

(C)  Prothonotary  or  Clerk  of  Lower  Court  in  Philadel- 
phia County. 

§135.  Special  Allowance — Petition. 

§136.  Filing  of  Petition — Time — Procedure  after  Allowance. 

§137.  Costs  of  Filing. 

§138.  Procedure  after  Notice  of  Allowance. 

§139.  State  Tax  not  Allowed. 

§140.  Certiorari — Return — Time — Special  Order. 

§141.  Writ  Allowed  for  Failure  to  Return  or  Certify  Whole  Record. 

§142.  Costs  of  Special  Writs. 

§143.  Duty  of  Prothonotary  or  Clerk  of  Lower  Court. 

§144.  Filing  of  Record— Non  Pros. 

§145.  Special  Return  Days  in  Criminal  Cases. 

(A)  Supreme  Court. 

(B)  Superior  Court. 

§130.  Appeal,  Entry  of — Name  of  Writ.  All  appellate 
proceedings  in  the  Supreme  Court  heretofore  taken  by 
writ  of  error,  appeal  or  certiorari  shall  hereafter  be  taken 
in  a  proceeding  to  be  called  an  appeal.  Act  May  9,  1889, 
§i,  P.  L.  158,  2.  Purd.  1445,  pl.  45- 

(1)     Effect  of  Act  of  1889.    Modes  of  reviewing  cases  by  writ  of 

196 


ENTRY  OF  APPEAL 


§§  130-145]  Prsecipe— Filing— Affidavit  as  to  Delay  §§  131, 132 

error,  appeal  and  certiorari,  which  were  in  use  prior  to  the  Act  of 
1889,  still  remain  applicable  to  the  same  kinds  of  cases,  the  only 
difference  being  that  they  are  now  called  by  the  same  name.  For 
distinction  between  writ  of  error,  appeal  and  certiorari,  see  Chap- 
ter XI,  §182,  below. 

(2)  Caution  in  Taking  Appeal  "It  is  good  rule  to  allow  a  little 
time  for  disappointment  to  cool  off"  before  taking  an  appeal,  Mr. 
Chief  Justice  Mitchell  remarks  in  his  Hints  upon  Practice  in  Appeal, 
52  Am.  L.  Reg.  339.  He  also  commends  to  appellants'  counsel  the 
practice — conspicuously  Lincoln's  practice — of  studying  the  other 
side  as  well  as  his  own.  The  valuable  suggestion  is  also  made  that  it 
is  always  well  to  keep  a  lookout  for  fresh  cases  reported  from  week 
to  week  and  not  yet  in  the  digests.  "Perhaps  once  or  twice  a  term 
it  occurs  that  counsel  say  the  point  has  been  decided  since  they  took 
their  appeal,  or  the  court  informs  them  that  the  point  has  been  argued 
and  decided  during  the  current  term."  Id. 

§131.  —  Praecipe.  The  names  of  the  parties,  estate  or 
matter  shall  be  set  forth  in  the  praecipe  for  an  appeal  in  the 
order  and  sequence  in  which  they  were  recorded  at  the  trial 
or  hearing  in  the  court  from  which  the  appeal  shall  be 
taken,  with  a  substitution  of  proper  parties  in  case  of  death 
or  amendment,  and  the  appeal  shall  be  entitled  as  the  ap- 
peal of ,  who  was  (plaintiff,  or  defendant,  as  the 

case  may  be),  from  the  (judgment  or  decree)  of  the  court 

of .    Act  May  9,  1889,  §2,  P.  L.  158,  2.  Purd.  1446, 

pi.  46. 

(1)  Praecipe  on  Appeal  from  Superior  Court  after  Allowance.    If 
appeal  from  Superior  Court  is  allowed,  praecipe  for  certiorari  should 
be  promptly  issued  and  appeal  perfected  by  counsel  after  receipt  of 
notice  of  allowance  from  prothonotary  of  Supreme  Court:  Platt-Bar- 
ber  Co.  v.  Groves,  193  Pa.  475,  1899. 

(2)  Form.    For  form  of  praecipe,  see  Appendix,  §§35  and  36. 

§132.  —  Filing — Affidavit  as  to  Delay,  etc.  In  every 
case  in  which  an  appeal  is  taken  to  the  Supreme  Court  or 

197 


ENTRY  OF  APPEAL 


§§  132,  133  Affidavit  as  to  Delay— Kule  to  Plead  [Chap.  8, 

Superior  Court,  such  appeal  shall  be  entered  in  the  court 
to  which  the  appeal  is  taken;  and  filed  with  the  same  shall 
be  an  affidavit  of  the  parties  appellant,  or  some  one  of 
them,  or  one  of  their  chief  officers,  or  of  their  agent  or  at- 
torney, that  said  appeal  is  not  taken  for  the  purpose  of 
delay,  but  because  appellants  believe  they  have  suffered  in- 
justice by  the  sentence,  order,  judgment  or  decree  from 
which  they  appeal.  Such  affidavit  may  be  made  before 
any  one  authorized  to  administer  oaths.  Act  May  9,  1897, 
1 1,  P.  L.  67,  2.  Purd.  1447,  pl-  48. 

(1)  Who  May  Make  Affidavit,     (a)   Affidavit  may  be  made  by 
executor  or  administrator :  Beale  v.  Patterson,  6  S.  &  R.  89,  1820 ;  (b) 
or  by  agent  of  corporation,  though  not  expressly  authorized:  Acad- 
emy v.  Power,  14  Pa.  442,  1850;  (c)  or  by  one  of  the  several  defen- 
dants on  behalf  of  all:  LaFitte  v.  LaFitte,  2  S.  &  R.  107,  1815;  Hart- 
man  v.  Stahl,  2  P.  &  W.  223, 1830;  Jones  v.  Backus,  114  Pa.  120, 1886. 

(2)  Filing  Affidavit — Time,     (a)   Affidavit  must  be  filed  in  all 
cases:  Beale  v.  Patterson,  6  S.  &  R.  89,  1820;  Brentlinger  v.  Brent- 
linger,  4  Rawle  241,  1833;  (b)  it  has  been  held  to  be  in  time  if  filed 
during  term  and  before  motion  to  dismiss:  Brentlinger  v.  Brentlinger, 
4  Rawle  241,  1833;  (c)  in  appeals  to  Superior  Court  it  must  be  filed 
within  three  months :  Page  v.  McNaughton  Co.,  2  Pa.  Super.  519,  1896 
(changed  to  six  months  by  Act  May  19,  1897,  §126,  above) ;  (d)  ap- 
pearance or  action  by  appellee  without  objection  to  want  of  affidavit, 
is  waiver  of  omission:  Heckert's  Ap.,  13  S.  &  R.  104, 1825. 

(3)  Forms.    For  forms  of  appeal  and  affidavit,  see  Appendix,  §§37 
to  40,  inclusive. 

§133.  — Rule  to  Appear  and  Plead.  The  prothonotary 
shall  endorse  on  each  appeal  or  writ  of  certiorari  to  re- 
move proceedings  a  rule  to  appear  and  plead  at  the  return- 
day  of  the  writ;  and  in  default  of  appearance  when  the 
cause  is  called  for  argument,  and  on  proof  of  ten  days'  ser- 
vice of  the  rule  on  the  appellee  or  his  counsel  below,  the 

198 


ENTRY  OF  APPEAL 


§§  130-145]  Fees  of  Prothonotaries  §  134 

court  will  proceed  ex  parte.  Supreme  Court  Rule  16;  Su- 
perior Court  Rule  10. 

(1)  Appearance  for  Appellee — Entry  Of.  Appearance  for  appel- 
lee is  not  necessary,  but  an  appearance  must  be  made  at  the  argu- 
ment or  the  court  will  proceed  ex  parte  on  proof  of  ten  days'  ser- 
vice of  notice.  For  form  of  entry  of  appearance,  see  Appendix,  §56. 

§134.  —  Fees —  (A)  Prothonotary  of  Appellate  Court. 
At  the  time  of  filing  the  appeal,  the  prothonotary  of  the  ap- 
pellate court  shall  be  paid  the  sum  of  twelve  dollars,  which 
shall  be  in  full  for  all  his  service  upon  any  appeal  taken 
thereto,  including  the  preparation  and  certifying  the  re- 
mittitur  and  record  to  the  court  below,  with  a  copy  of  the 
opinion  in  all  cases,  or  for  preparing  and  certifying  the  re- 
cord to  the  Supreme  Court  in  case  of  an  appeal  thereto 
from  the  Superior  Court.  Act  May  19,  1897,  §3,  P.  L.  67, 
2  Purd.  1447,  pi.  50. 

(B)  Prothonotary  or  Clerk  of  Lower  Court.  For 

all  services  in  connection  with  any  appeal,  he  [the  pro- 
thonotary or  clerk  of  the  lower  court]  shall  receive  the 
sum  of  three  dollars.  Act  May  19,  1897,  §5,  P.  L.  67,  2 
Purd.  1448,  pi.  51. 

(C)  Prothonotary  or  Clerk  of  Lower  Court  in 

Philadelphia  County.  The  fees  to  be  received  by  the  sev- 
eral prothonotaries  of  the  courts  of  common  pleas  of  this 
commonwealth  shall  be  as  follows : 

Entering  proceedings  of  Supreme  or  Superior  Court, 
fifty  cents. 

Entering  certiorari  to  Supreme  or  Superior  Court,  and 
bond  thereon,  with  justification,  three  dollars. 

Provided,  however,  that  the  provisions  of  this  act  shall 
not  apply  to  counties  having  a  population  of  less  than  one 
million.  Act  May  i,  1907,  §i,  P.  L.  142,  5  Purd.  5492,  pi.  15. 

199 


ENTRY  OF  APPEAL 


§§  135,  136  Special  Allowance  for  Appeal  from  Superior  Court     [Chap.  8, 

(1)  Cost  of  Special  Allocatur.    See  §§137  and  142,  below. 

(2)  Fees  in  Cases  of  Original  Jurisdiction,  etc.    See  §8,  note  (3), 
above. 

§135.  —  Special  Allowance — Petition.  Petitions  for 
the  allowance  of  an  appeal  from  the  Superior  or  other 
court  ....  must  set  forth  the  question  involved, 
the  opinion  of  the  court  and  the  grounds  on  which  an  ap- 
peal or  other  order  is  asked;  and,  where  practicable,  must 
be  accompanied  by  copies  of  the  paper-books.  Supreme 
Court  Rule  19. 

(1)  When  Special  Allowance  is  Required.  See  §121  and  note  (2) 
for  special  allowance  of  appeal  from  Superior  Court  and  §46  (D),  and 
note  (11)  as  to  special  allowance  in  criminal  cases.  For  form,  see  Ap- 
pendix, §27. 

§136. Filing  of  Petition — Time— Procedure  after 

Allowance.  All  such  petitions  shall  be  filed  with  the  pro- 
thonotary  of  the  district  in  which  the  cause  is  pending,  and 
shall  be  presented  by  him  to  the  court  or  the  most  conven- 
ient justice  thereof.  For  purposes  of  computation  of  time, 
etc.,  the  matter  shall  be  deemed  to  be  sub  judice  from  the 
date  of  such  filing.  Supreme  Court  Rule  20. 

(1)  Time  of  Presenting  and  Procedure  on  Petition  for  Appeal. 
"In  the  computation  of  this  period  however  so  far  as  the  per-- 
fecting  of  the  appeal  is  concerned,  the  time  that  the  applica- 
tion is  pending  in  this  court  must  be  deducted.  .  .  .  The  correct 
practice  is  not  to  present  it  [the  petition]  to  a  single  judge,  but  to  file 
with  the  prothonotary  of  the  proper  district,  who  will  submit  it  to 
the  court,  if  in  session,  or  to  the  most  convenient  member  in  vaca- 
tion. And  the  time  of  the  application  will  be  determined  as  of  the 
date  of  such  filing  with  the  prothonotary.  The  Act  of  1895  [Act  June 
24,  1895,  §121,  above],  gives  any  one  justice  the  authority  to  allow  the 
appeal,  and  while  in  clear  or  urgent  cases  this  authority  will  be  exer- 
cised, yet  the  practice  of  the  court  is  to  consider  the  matter  together 

2OO 


ENTRY  OF  APPEAL 


§§  130-145]  Special  Allowance — Costs — Procedure  §§  137, 138 

if  the  court  is  in  session,  or,  if  not,  to  follow  the  course  of  our 
Brother  Dean  in  the  present  case,  and  if  a  prima  facie  case  is  made 
out  to  grant  a  rule  to  show  cause,  etc.  Where  applications  are  to  be 
made  in  vacation  it  may  frequently  be  a  matter  of  much  trouble  and 
embarrassment  to  counsel  to  find  a  judge,  all  of  which  will  be  avoided 
by  filing  the  petition  with  the  prothonotary.  It  should  be  accom- 
panied in  all  cases  by  a  copy  of  the  paper-books,  the  opinion  of  the 
Superior  Court,  and  a  full  statement  of  the  grounds  on  which  the 
allowance  of  the  appeal  is  asked.  If  the  appeal  is  allowed,  of  which 
counsel  will  receive  immediate  notice  from  the  prothonotary,  the  pras- 
cipe  for  a  certiorari  should  be  promptly  issued,  and  the  appeal  per- 
fected in  accordance  with  the  statute.  No  exact  limit  of  time  can  be 
fixed,  but  counsel  will  be  required  to  be  prompt,  and  no  more  than 
reasonable  time  for  diligent  action  will  be  allowed ' ' :  Mitchell,  C.  J., 
in  Platt-Barber  Co.  v.  Groves,  193  Pa.  475,  1899.  See  Backenstoe  v. 
O'Neil,  26  C.  C.  156,  1901,  where  the  court  refused  to  set  aside  execu- 
tion, issued  after  petition  for  allowance  of  appeal  from  Superior  to 
Supreme  Court  was  filed,  though  such  petition  was  presented  within 
three  weeks  from  entry  of  judgment. 

§137. Costs  of  Filing.    A  like  sum  [three  dollars] 

shall  be  paid  the  prothonotary  of  the  Supreme  Court  on 
filing  a  petition  for  the  allowance  of  an  appeal  from  the 
Superior  Court,  but  it  shall,  however,  form  part  of  the  pro- 
thonotary's  costs  on  the  appeal  if  the  petition  is  granted. 
Act  May  19,  1897,  §18,  P.  L.  67,  2.  Purd.  1450,  pi.  65. 

§138.  —  Procedure  after  Notice  of  Allowance.     If 

the  prayer  of  the  petition  be  granted,  the  prothonotary 
shall  notify  counsel  for  the  petitioner,  who  must  thereupon 
•promptly  file  his  prsecipe  and  perfect  the  appeal  in  accord- 
ance with  the  statute,  or  take  such  action  in  cases  not  for 
appeal  as  may  be  appropriate  to  the  relief  sought.  Su- 
preme Court  Rule  21. 

(1)     Perfecting  of  Appeal.    If  the  appeal  is  allowed,  the  praecipe 
for  certiorari  should  be  promptly  issued   and  appeal  perfected  by 

201 


ENTRY  OF  APPEAL 


§§  139, 140  Certiorari  [Chap.  8, 

counsel  after  receipt  of  notice  of  allowance  from  the  prothonotary 
of  the  Supreme  Court.  No  time  limit  is  fixed  but  no  more  than  rea- 
sonable time  for  diligent  action  will  be  allowed:  Platt-Barber  Co.  v. 
Groves,  193  Pa.  475, 1899.  See  also  §136,  note  (1),  and  §140,  note  (3). 

* 
§139.    —  State  Tax  not  Allowed.    No  state  tax  shall  be 

allowed  on  any  appeal  to  the  Supreme  Court  or  Superior 
Court,  or  on  any  writ  or  process  of  either  of  said  courts. 
Act  May  19,  1897,  §3,  P.  L.  67,  2  Purd.  1447,  pi.  50. 

§  140.  —  Certiorari  —  Return  —  Time  —  Special  Order. 
When  an  appeal  has  been  entered  the  prothonotary  of  the 
appellate  court  shall  issue  a  writ,  in  the  nature  of  a  writ 
of  certiorari,  directed  to  the  court  from  which  the  appeal 
is  taken,  requiring  said  court  to  send  to  the  appellate 
court  for  review  the  record  in  the  cause  or  matter  wherein 
is  entered  the  sentence,  order,  judgment  or  decree  appealed 
from  on  or  before  the  Saturday  prior  to  the  first  day  of  the 
week  fixed  by  the  appellate  court  for  the  argument  of 
said  appeal,  and  no  appeal  shall  be  considered  perfected 
until  such  writ  be  filed  in  the  court  below.  Act  May  19, 
1897,  §2,  P.  L.  67,  2  Purd.  1447,  pi.  49. 

The  appellate  court  may,  by  rule  or  special  order  with- 
out prior  notice  to  the  court  below,  require  said  record  to 
be  prepared,  certified  and  forwarded  by  the  court  below  at 
an  earlier  date  than  that  mentioned  in  the  writ  whenever 
the  record  may  be  needed  in  any  matter  connected  with 

said  appeal.     Id. 

(1)  Writ  Necessary  in  all  Cases — Form.    A  writ  in  the  nature  of  a 
writ  of  certiorari  must  be  issued  in  all  cases  in  order  to  bring  up  the 
record:  Platt-Barber  Co.  v.  Groves,  193  Pa.  475,  1899.    For  form  of 
writ,  see  Appendix,  §§41  to  48,  inclusive. 

(2)  Custody  of  Record.    The  record  is  in  the  custody  of  the  clerk 
or  prothonotary  of  the  courts:  Fitzsimons  v.  Salomon,  2  Bin.  436, 
1810. 

202 


ENTRY  OF  APPEAL 


§§130-145]       Certiorari — Diminution   of   Record       §  140  (3),  §  141  (1)  (d) 

(3)  Filing  of  Writ,  (a)  The  writ  of  certiorari  must  be  filed  with 
the  prothonotary  or  clerk  of  the  lower  court  within  three  weeks  from 
the  date  of  the  judgment,  order  or  decree  appealed  from  in  order  that 
the  appeal  may  operate  as  a  supersedeas:  see  §167;  (b)  but  the  act 
does  not  require  that  the  writ  be  filed  in  all  cases  within  six  months 
from  entry  of  judgment,  but  a  reasonable  time  will  be  allowed:  Platt- 
Barber  Co.  v.  Groves,  193  Pa.  475,  1899 ;  Mehaffey  v.  Fink,  13  Pa.  Su- 
per. 534,  1900;  (c)  an  appeal  is  perfected  when  the  pre- 
scribed affidavit  has  been  filed  and  bail  given  for  costs:  Page  v.  Mc- 
Naughton  Co.,  2  Pa.  Super.  519,  1896;  (d)  this  act  did  not  abrogate 
Equity  Rule  92  requiring  a  statement  of  errors  to  be  filed  in  the 
lower  court :  Barlott  v.  Forney,  187  Pa.  301,  1898 ;  Swoope  v.  Wake- 
field,  10  Pa.  Super.  342,  1899;  Wilson  v.  Keller,  195  Pa.  98,  1900; 
North  v.  Pantall,  197  Pa.  303,  1900 ;  but  said  rule  has  been  abrogated 
and  annulled  by  recent  revision  of  Supreme  Court  Equity  Rules. 

§141.  —  Writ  Allowed  for  Failure  to  Return  or  Certify 
Whole  Record.  Writs  may  be  issued  out  of  the  Supreme 
Court  or  Superior  Court  as  heretofore,  if  the  court  below 
fails  or  neglects  to  certify  or  send  the  whole  record  in  the 
cause,  or  when  the  record  has  been  returned  to  the  lower 
court  and  is  needed  for  further  proceedings  in  the  appel- 
late court.  Act  May  19,  1897,  §18  P.  L.  67,  2.  Purd.  1450, 
pi.  65. 

(1)  Diminution  of  Record,  (a)  Where  record  returned  is  not  com- 
plete, proper  practice  is  to  file  a  petition  suggesting  diminution  of 
record,  in  which  case  certiorari  will  be  granted  and  record  returned 
to  court  below:  Bassler  v.  Niesly,  1  S.  &  R.  472, 1815;  Flagg  v.  Searle, 
31  L.  I.  101,  1874;  Seagrave  v.  Lacy,  28  Pa.  Super.  586,  1905;  (b) 
lower  court,  and  not  appellate  court,  must  determine  whether  record 
is  complete:  Bassler  v.  Niesly,  1  S.  &  R.  472,  1815;  (c)  if  president 
judge  certifies  in  answer  to  certiorari  that  record  is  fully  and  perfectly 
returned,  remedy  is  against  judge  for  false  return  if  return  be  un- 
true in  fact:  Bassler  v.  Niesly,  1  S.  &  R.  472,  1815;  Drexel  v.  Man,  6 
W.  &  S.  386,  1843;  Flagg  v.  Searle,  31  L.  I.  101,  1874;  Conrow  v. 
Schloss,  55  Pa.  28,  1867;  (d)  record  may  be  returned  to  afford  judges 
opportunity  to  see  that  stenographer  makes  proper  certificate,  and  that 
all  requests,  or  general  objections,  actually  made  in  regard  to  the 

203 


ENTRY  OF  APPEAL 


§  141  (1)  (d)-§  142    Certiorari — Diminution  of  Record — Costa         [Chap.  8, 

charge,  are  noted,  and  their  allowance  or  refusal  stated:  Wain  v. 
Beaver,  161  Pa.  605,  1894;  (e)  where  special  return  of  trial  judge 
shows  record  has  been  fully  returned,  court  will  refuse  application 
to  take  depositions  in  mandamus  proceedings  in  opposition  to  return: 
Com.  v.  Hutton,  32  Pa.  Super.  66,  1906;  (f)  record  may  be  remitted 
for  purpose  of  correction:  Darlington  v.  Speakman,  9  W.  &  S.  182, 
1845;  Wain  v.  Beaver,  161  Pa.  605,  1894;  Fitzsimmons  v.  Robb,  173 
Pa.  645, 1896;  (g)  but  mere  clerical  error  in  entry  of  judgment  may  be 
corrected  by  appellate  court:  Guthrie  v.  Reid,  107  Pa.  251,  1885;  (h) 
record  is  within  reach  of  lower  court  for  correction  until  return  day 
or  record  is  actually  removed :  Gunn  v.  Bowers,  126  Pa.  552,  1889 ;  (i) 
thereafter  lower  court  cannot  make  any  order:  Cox's  Admr.  v.  Henry, 
36  Pa.  445, 1860;  Newbold  v.  Newbold,  1  W.  N.  C.  134,  1874;  Martzin- 
ger  v.  Smith,  9  W.  N.  C.  274,  1880;  (j)  and  diminution  of  record  must 
be  suggested:  Newbold  v.  Newbold,  1  W.  N.  C.  134,  1874;  Seagrave  v. 
Lacy,  28  Pa.  Super.  586,  1905;  (k)  where  decree  nunc  pro  tune  was 
entered  after  record  was  made  up,  there  should  be  special  return  sur 
diminution  of  record;  decree  should  not  be  pinned  to  another  paper 
in  case:  Clark  v.  Clark,  180  Pa.  186,  1897;  (1)  where  transcript  of  tes- 
timony is  duly  approved  but  carbon  copy,  without  judge's  signature, 
is  filed  by  mistake,  appellant  may,  after  notice  to  quash  and  with  ap- 
proval of  lower  and  appellate  court,  file  original  transcript  without 
formal  suggestion  of  diminution  of  record:  Ripka  v.  Ins.  Co.,  36  Pa. 
Super.  517,  1908. 

(2)  Forms.  For  forms  of  petition  and  certiorari  sur  diminution 
of  record,  see  Appendix,  §§49  to  51. 

§142.  Costs  of  Special  Writs.  For  all  services  in  con- 
nection with  said  writs,  or  with  any  other  special  writs, 
issued  in  appealed  cases,  the  prothonotary  of  the  appellate 
court  shall  be  paid  at  the  time  the  writ  is  issued  the  sum  of 
$3.00,  which  shall,  in  the  discretion  of  the  appellate  court, 
be  ultimately  paid  by  the  party  suing  out  the  writ  or  as 
costs  in  the  cause.  Act  of  May  19,  1897,  §18,  P.  L.  67,  2. 
Purd.  1450,  pi.  65. 


204 


ENTRY  OF  APPEAL 


§§  130-145]       Filing  Record — Return  Days — Criminal  Cases  §§  143-5 

§143.  —  Duty  of  Prothonotary  or  Clerk  of  Lower 
Court.  The  prothonotary  or  clerk  shall  prepare  and  for- 
ward the  record  to  the  appellate  court,  duly  certified  by 
any  judge  of  the  court  below,  on  or  before  the  date  men- 
tioned in  said  writ,  or  in  such  rule  or  special  order.  Act 
May  19,  1897,  §2,  P.  L.  67,  2  Purd.  1447,  pi.  49. 

(1)  Practice  as  to  Return.    In  Philadelphia  county  the  prothono- 
tary or  clerk  attends  to  making  up  and  return  of  record,  filing  the 
same  at  his  convenience  prior  to  return  day.    In  other  counties  the 
practice  varies;  in  some,  the  record  is  brought  up  and  filed  by  the 
prothonotary  or  clerk  as  required  by  the  act;  in  others  by  counsel  on 
the  first  day  of  the  term. 

(2)  Record.    As  to  what  is  record  and  as  to  the  requisites  of  the 
record,  see  Chapter  IX,  §§146  to  162,  below. 

§144.  Filing  of  Record — Non-Pros.  In  all  cases  where 
the  record  is  not  returned  on  the  return-day  of  the  term  at 
which  the  case  is  upon  the  list  for  agument,  it  shall  be  the 
duty  of  the  prothonotary  to  enter  a  non-pros.,  which  shall 
not  be  taken  off  except  by  order  of  the  court.  Supreme 
Court  Rule  15;  Superior  Court  Rule  9. 

(1)  Return  Days.    For  return  days  of  the  Supreme  and  the  Su- 
perior Courts,  see  Appendix,  §§21  and  22. 

(2)  Quashing.      Appeal  will  be  quashed  for  failure  to  comply 
with  above  rules :  Hughes  v.  Cooper,  42  Pa.  Super.  594,  1910. 

§145.  —  Special  Return  Days  in  Criminal  Cases —  (A) 
Supreme  Court.  The  first  Monday  of  each  month  shall  be 
a  special  return  day  in  each  district  for  all  appeals  in  cases 
of  conviction  and  sentence  of  death  for  murder  of  the  first 
degree.  The  fifth  Monday  after  issuing  the  writ  shall  be 
assigned  for  the  argument  thereof.  Supreme  Court  Rule 
ii. 

205 


CRIMINAL  CASES. 


§  145  Eeturn  Days  — Superior  Court        [Chap.  8,  §§  130-45] 

(B)  Superior  Court.     The  first  Monday  of  each 

month  shall  be  a  special  return  day  for  all  appeals  in 
criminal  cases.  The  fifth  Monday  after  issuing  the  writ 
shall  be  assigned  for  the  argument  thereof,  provided  the 
court  shall  then  be  in  session.  If  then  in  session  in  a  place 
other  than  that  in  which  the  writ  issued,  the  prothonotary 
issuing  such  writ  shall  certify  the  record  to  the  place  in 
which  the  court  shall  be  sitting.  If  the  court  shall  not  be 
in  session  at  that  time,  the  case  shall  be  certified  to  the 
place  in  which  the  next  term  shall  be  held.  Superior  Court 
Rule  7. 


206 


LOWER  COURT  RECORD. 


Synopsis  of  Chapter 


CHAPTER  IX. 

RECORD  OF  COURT  BELOW. 

§146.    Whole  Eecord  Must  be  Certified  to  Appellate  Court. 

§147.     Charge  of  Court — Reducing  to  Writing  on  Request — Filing. 

§148.     Points  and  Charge — Written  Answers  Required — Filing — Civil 

Cases. 

§149.  Criminal  Cases. 

§150.    Findings  of  Fact  and  Law  in  Equity  Cases. 
§151.    Exceptions  to  Evidence — Criminal  Cases. 
§152.    Stenographic  Notes  of  Proceedings — Orphans'  Court. 
§153.        Common  Pleas  and  Criminal  Courts. 
§154.        When  Transcript  Shall  be  Made. 

§155.        Filing  of  Transcript — Notice — Practice — Certification — Form. 
§156.        Excluding    Part    of    Transcript    by    Agreement — Order    of 

Court — Printing  by  Appellee — Cost — Printing  Plans 

and  Drawings. 

§157.        Daily  Transcript  May  be  Required. 
§158.        Notes  to  be  Filed  when  Transcript  not  Required — Cost  to 

Counsel. 
§159.        Payment  for  Transcript. 

(A)  Generally. 

(B)  Cases  in  Oyer  and  Terminer. 

(C)  When  it  is  Duty  of  Stenographer  to  File  Transcript 

Without  Order. 
§160.        Hearing  Before  Examiner,  etc. — Transcript  to  be  Furnished — 

Evidence — Compensation. 
§161.    Exceptions,  Bill  of — Sealing. 

§162.         (A)  Allowance    by    Trial    Judge   Unnecessary — Evidence — 
Charge — Answers  to  Points — Time  and  Manner  of 
Taking. 

(B)  Exception   to   Decision   of   Court   Unnecessary   Where 
Decision  Appears  in  Proceedings. 

207 


LOWER  COURT  RECORD. 


§  146  Whole  Kecord— Includes  What  [Chap.  9, 

§146.  Whole  Record  Must  be  Certified  to  Appellate 
Court.  Writs  may  be  issued  out  of  the  Supreme  Court  or 
Superior  Court  as  heretofore,  if  the  court  below  fails  or 
neglects  to  certify  or  send  the  whole  record  in  the  cause, 
or  when  the  record  has  been  returned  to  the  lower  court 
and  is  needed  for  further  proceedings  in  the  appellate 
court.  Act  May  19,  1897,  §18,  P.  L.  67,  2  Purd.  1450,  pi. 
65- 

(1)  Record — What  it  Includes.  Record  includes  copy  of  all  docket 
entries  made,  pleadings  and  generally  all  papers  filed  in  the  case. 
The  following  have  been  held  to  be  properly  included:  (a)  Prsecipe 
for  original  writ:  Fitzsimons  v.  Salomon,  2  Bin.  436,  1810;  Wilkin- 
son v.  Boro.,  215  Pa.  486,  1906;  (b)  declaration  and  affidavit  of  de- 
fense; Maher  v.  Ashmead,  30  Pa.  344,  1858;  Hunter  v.  Reilly,  36  Pa. 
509,  1860;  Danziger  v.  Williams,  91  Pa.  234,  1879;  Allegheny  City  v. 
McCaffrey,  131  Pa.  137,  1890;  Lane  v.  Sand  Co.,  172  Pa.  252,  1896; 
Hutton  v.  McLaughlin,  1  Pa.  Super.  642,  1896;  Brainerd  v.  Davis,  21 
Pa.  Super.  599,  1902;  (c)  replication  "and  issue":  Brown  v.  Barnett, 
2  Bin.  33,  1809 ;  (d)  petition  for  damages  under  Act  June  21,  1858,  P. 
L.  419,  providing  for  the  sale  of  canals:  Delaware  Div.  Canal  Co.  v. 
McKeen,  52  Pa.  117,  1866;  (e)  notice  to  township  of  proceedings 
under  Act  April  15, 1834,  to  alter  boundaries :  Norwegian  Twp.,  20  Pa. 
324,  1853;  (f)  paper  purporting  to  be  exemplification  of  record  of 
judgment  in  another  state:  Frey  v.  Wells,  4  Yeates  497,  1808;  (g)  de- 
positions to  support  exceptions  to  report  of  viewers  in  road  case: 
Bryson's  Road,  2  P.  &  W.  207,  1830;  (h)  notes  of  testimony  when 
properly  made  part  of  record  by  bill  of  exception:  see  §§151-161, 
below;  (i)  opinion  of  court  in  equitable  proceedings:  Independence 
Party  Nomination,  208  Pa.  108,  1904;  Chester  County  Nominations, 
213  Pa.  64,  1905;  Mulholland's  Case,  217  Pa.  631,  1907;  Krickbaum's 
Election,  221  Pa.  521,  1908;  (j)  but  not  in  proceedings  at  law  unless 
reduced  to  writing  and  filed  in  accordance  with  Acts  of  1806  and  1856, 
§147,  below:  see  also  note  (2)  (a),  this  section;  (k)  charge  of  court 
when  filed  at  request  of  parties  or  made  part  of  record  by  bill  of  ex- 
ception: see  §§147-149,  below;  (1)  finding  of  fact  and  law  in  equity 
cases:  see  §150,  below. 


208 


WHOLE  RECORD  TO  BE  CERTIFIED. 


§§146-162]  WhsJt  not  Included  in  Record         §  146  (2)  (a)-(h) 

(2)  What  Record  Does  not  Include,  (a)  Record  does  not  include 
opinion  of  court  below :  Com.  v.  Church,  1  Pa.  105, 1845 ;  Mauch  Chunk 
v.  Nescopek,  21  Pa.  46,  1853;  Girts  v.  Com.,  22  Pa.  351,  1853;  Cath- 
cart  v.  Com.,  37  Pa.  108,  1860;  Bradford  Twp.  v.  Goshen  Twp.,  57 
Pa.  495,  1867;  Plunkett's  Creek  Twp.  v.  Fairfield  Twp.,  58  Pa.  209, 
1868;  Upper  Dublin  Road,  94  Pa.  126,  1880;  Germantown  Ave.,  99  Pa, 
479,  1882;  Owen's  Petition,  140  Pa.  565,  1891;  Fullerton's  Est.,  146 
Pa.  61^  1892;  Com.  v.  Duff,  7  Pa.  Super.  415,  1898;  Com. 
v.  Ezell,  212  Pa.  293,  1905;  Carpenter  v.  Lancaster,  212  Pa. 
581,  1905;  see  note  (1)  (i)  and  (j),  this  section,  and  §182,  note 
(4)  (e) ;  (b)  charge  of  court  below,  unless  exceptions  have  been  duly 
taken :  Connell  v.  O'Neil,  154  Pa.  582,  1893;  Hill  v.  Egan,  160  Pa.  119, 
1894 ;  see  also  §147,  note  (4) ;  (c)  evidence  taken  in  proceedings  below 
not  made  part  of  record  by  bill  of  exceptions  or  otherwise:  McCabe's 
Case,  11  Pa.  Super.  560,  1899;  Meenan's  Ap.,  11  Pa.  Super.  579,  1899; 
Hollander's  Ap.,  11  Pa.  Super.  23,  1899;  Brown's  Case,  18  Pa.  Super, 
409,  1901;  Weaver's  Case,  20  Pa.  Super.  95,  1902;  Com.  v.  Dean,  21 
Pa.  Super.  641,  1902 ;  Com.  v.  Strickland,  27  Pa.  Super.  309,  1905 ;  see 
§161,  note  (1) ;  as  to  manner  of  getting  evidence  on  record,  see  §§151 
to  161,  below;  (d)  remarks  of  counsel  in  addressing  jury,  unlesa 
brought  on  record  by  exception:  Fulmer  v.  Com.,  97  Pa.  503,  1881; 
Com.  v.  Nicely,  130  Pa,  261,  1889;  McCloskey  v.  R.  R.,  156  Pa.  254,. 
1893;  Com.  v.  Weber,  167  Pa.  153,  1895;  Holden  v.  R.  R.,  169  Pa.  1,. 
1895;  Com.  v.  Windish,  176  Pa.  167,  1896;  Com.  v.  Smith,  2  Pa.  Super. 
474,  1896;  Com.  v.  Eisenhower,  181  Pa.  470,  1897;  Speers  v.  Knarr,  4 
Pa.  Super.  80,  1897;  Com.  v.  Dorman,  22  Pa.  Super.  20,  1903;  Com.  v. 
Ezell,  212  Pa.  293, 1905 ;  (e)  or  where  trial  judge  refused  to  certify  to 
correctness  of  language  alleged  to  have  been  used :  Com.  v.  Church,  17 
Pa.  Super.  39, 1901 ;  (f )  agreement  of  counsel  as  to  facts  where  it  does 
not  appear  they  were  admitted  of  record  by  consent  of  court:  Nicoll 
v.  McCaffrey,  1  Pa.  Super.  187,  1896 ;  (g)  matters  occurring  collateral, . 
antecedent  or  subsequent  to  decree  or  order  appealed  from:  Irwin  v. 
Gallagher,  8  S.  &  R.  528, 1822;  Nice  v.  Bowman,  6  Watts  26, 1837;  Bell 
v.  Bell,  9  Watts  47, 1839;  Stearly 's  Ap.,  3  Grant  270, 1859;  Lyon's  Ap., 
61  Pa.  15,  1869;  Clark  v.  Douglass,  62  Pa.  408,  1870;  McFarland  v. 
Clark,  4  W.  N.  C.  250, 1876;  Gallagher  v.  Stewart,  34  L.  I.  232,  1877; 
Walls  v.  Campbell,  125  Pa.  346, 1889;  Evans's  Est.,  150.  Pa.  212, 1892; 
American  Sunday  School  Union  v.  Phila.,  161  Pa.  307,  1894;  Applegate- 
v.  Cohn,  1  Pa.  Super.  344,  1896;  Pittsburg  v.  Maxwell,  179  Pa.  553,. 
1897;  (h)  affidavits  and  depositions  not  entered  as  evidence  in  proceed- 

209 
14 


LOWER  COURT  RECORD. 


§  146  (h)-§  147  Charge  of  Court  [Chap.  9, 

ings  in  court  below  and  not  duly  excepted  to:  Dodds  v.  Dodds,  9  Pa. 
315,  1848;  Brown  v.  Directors,  18  Pa.  78,  1851;  Calhoun  v.  Logan,  22 
Pa.  46, 1853;  Rogers  v.  Ratcliffe,  23  Pa.  184, 1854;  Little  Britain  Road, 
27  Pa.  69,  1856;  Catherine  and  Frankstown  Twps.,  31  Pa.  303,  1858; 
Thomas  v.  Bradfield,  15  L.  1. 165, 1859 ;  Bain  v.  Funk,  61  Pa.  185,  1869 ; 
Sugar  Creek  v.  Washington,  62  Pa.  479,  1869;  Robinson  v.  Narber,  65 
Pa.  85,  1870;  Shisler  v.  Keavy,  75  Pa,  79,  1874;  Darby  v.  Sharon  Hill, 
112  Pa.  66,  1886;  France  v.  Ruddiman,  126  Pa.  257,  1889;  White  v. 
Rech,  171  Pa.  82,  1895;  Nicoll  v.  McCaffrey,  1  Pa.  Super.  187,  1896; 
Sommers  v.  Howey,  1  Pa.  Super.  318,  1896;  Alfonso's  Case,  11  Pa. 
Super.  565,  1899;  Turner  v.  Larkin,  12  Pa.  Super.  284,  1899;  Com.  v. 
Craig,  19  Pa,  Super.  81,  1902;  Wyatt  v.  Szymanski,  38  Pa.  Super.  525, 
1909;  Houser  v.  Kime,  42  Pa.  Super.  483;  see  also  §182,  note  (4)  (a) ; 
(i)  papers,  records,  etc.,  which  were  no  part  of  proceedings  in  lower 
court:  Girts  v.  Com.,  22  Pa.  351,  1853;  Hart  v.  Cooper,  129  Pa.  297, 
1889;  Lee's  Est.,  18  Pa.  Super.  513,  1901. 

(3)     Correction  of  Record.    See  §141,  note  (1). 

§  147.  Charge  of  Court — Reducing  to  Writing  on  Re- 
quest of  Counsel — Filing.  In  all  cases  in  which  the  judge 
or  judges  holding  the  Supreme  Court,  or  court  of  nisi  prius, 
circuit  court,  or  presidents  of  the  courts  of  common  pleas, 
shall  deliver  the  opinion  of  the  court,  if  either  party  by 
himself  or  counsel  require  it,  it  shall  be  the  duty  of  the 
said  judges,  respectively,  to  reduce  the  opinion  so  given, 
with  their  reasons  therefor,  to  writing,  and  file  the  same 
of  record  in  the  cause.  Act  of  Feb.  24,  1806,  §25,  4  Sm. 
L.  270,  3  Purd.  3356,  pi.  i. 

The  president  judges  of  the  several  courts  of  common 
pleas  of  this  commonwealth  shall,  in  every  case  tried  be- 
fore them  respectively,  upon  request  of  any  party  or  attor- 
ney concerned  therein,  reduce  the  whole  opinion  and 
charge  of  the  court  as  delivered  to  the  jury  to  writing,  at 
the  time  of  the  delivery  of  the  same,  and  shall  forthwith  file 
the  same  of  record.  Act  of  April  15,  1856,  §i,  P.  L.  337, 
3  Purd.  3357,  pi.  2. 

210 


CHARGE  OF  COURT. 


§§146-162]  Exceptions   Necessary  §  147  (l)-(4) (c) 

(1)  Charge  to  Jury.    The  Act  February  24,  1806,  embraces  charges 
delivered  to  juries  as  well  as  opinions:  Downing  v.  Baldwin,  1  S.  &  R. 
298,  1815. 

(2)  Filing  Entire  Charge.     The  Act  of  1806  did  not  require  the 
judge  to  write  and  file  the  whole  charge:  Reigart  v.  Ellmaker,  14  S.  & 
R.  121,  1826;  Munderbach  v.  Lutz,  14  S.  &  R.  125,  1826;  but  a  party 
could  be  required  to  specify  what  portions  of  charge  he  wished  filed: 
Meese  v.  Levis,  13  Pa.  384,  1850.    The  Act  of  1856  requires  the  whole 
charge  to  be  filed  on  request. 

(3)  Reasons  for  Opinion.    Failure  to  file  reasons  for  the  opinion  is 
not  ground  for  reversal:  Morberger  v.  Hackenberg,  13  S.  &  R.  26, 
1825;  Kennedy  v.  Daily,  6  Watts  269,  1837;  nor  failure  to  file  reasons 
for  rejecting  evidence :  Morrison  v.  Moreland,  15  S.  &  R.  61, 1826. 

(4)  Exception  Necessary,     (a)  Under  the  Acts  of  1806  and  1856, 
above,  and  also  the  Act  of  1877,    (§148,  below),  the  filing  of  the 
charge  made  it   the  subject   of   error  without   a   bill   of  exceptions 
being  taken :  Downing  v.  Baldwin,  1  S.  &  R.  298,  1815 ;  Bassler  v. 
Niesly,  1  S.  &  R.  431,  1815;  Wheeler  v.  Winn,  53  Pa.  122,  1866;  (b) 
but  the  request  of  a  party  in  interest  that  the  charge  be  filed  of  record 
was  necessary  before  verdict :  Bratton  v.  Mitchell,  5  Watts  69,  1836 ; 
Lancaster  v.  DeNormandie,  1  Whar.  49, 1836 ;  Holden  v.  Cole,  1  Pa.  303, 
1845;  Meese  v.  Levis,  13  Pa.  384, 1850;  Lehigh  Valley  R.  R.  v.  Hall,  61 
Pa.  361,  1869;  (c)  it  is  now  settled  that  under  the  above  acts  and  the 
Act  of  May  24,  1887,  P.  L.  199,  amended  by  Act  May  1,  1907  (see 
§153,  below),  to  enable  a  party  to  assign  errors  to  the  charge  there 
must  be,  first,  a  general  exception  noted  to  the  charge  before  verdict, 
[unless  local  rules  of  court  require  counsel  to  specify  the  particular 
parts  of  charge  objected  to],  and,  second,  a  request,  before  verdict, 
that  the  charge  be  reduced  to  writing  from  the  stenographer's  notes 
and  filed  of  record,  which  request  must  be  noted  on  the  record :  Rosen- 
thai  v.  Ehrlicher,  154  Pa.  396,  1893 ;  Smith  v.  Times  Pub.  Co.,  178  Pa. 
481,  1896;  overruling  Janney  v.  Howard,  150  Pa.  339,  1892;  Curtis  v. 
Winston,  186  Pa.  492,  1898;  Stout  v.  Quinn,  9  Pa.  Super.  179,  1899; 
Kinney  v.  Burnhorn,  23  Pa.  Super.  583,  1903 ;  Leonard  v.  Leslie,  23  Pa. 
Super.  63,  1903;  McConnell  v.  R.  R.,  206  Pa.  370, 1903;  Cutter  v.  Pier- 
son,  26  Pa.  Super.  10,  1904;  Mathushek  Piano  Co.  v.  Engberry,  30  Pa. 
Super.  543,  1906;  Sternberg  v.  Sklaroff,  32  Pa.  Super.  116,  1906;  Diet- 
rich v.  Ins.  Co.,  32  Pa.  Super.  234,  1906;  Petri  v.  Carracciolo,  33  Pa. 
Super.  312,  1907;  (d)  and  it  should  also  appear  that  the  charge  was 

211 


LOWER  COURT  RECORD. 


§147  (d)-§  148        Charge— Exceptions— Points— Civil  Cases  [Chap.  9, 

approved  and  filed  by  direction  of  trial  judge;  Rosenthal  v.  Ehrlicher, 
154  Pa.  396,  1893;  Connell  v.  O'Neil,  154  Pa.  582,  1893;  Hill  v.  Egan, 
160  Pa.  119,  1894;  Com.  v.  Arnold,  161  Pa.  320,  1894;  Pool  v.  White, 
171  Pa.  500, 1895;  Phila.  v.  Institute,  177  Pa,  37, 1896;  Smith  v.  Times 
Pub.  Co.,  178  Pa.  481,  1897;  Petri  v.  Carracciolo,  33  Pa.  Super.  312, 
1907;  (e)  the  filing  of  a  stenographer's  certified  transcript  in  accord- 
ance with  Rules  of  Court  (see  §155,  below)  does  not  dispense  with  the 
above  requirements :  Connell  v.  0  'Neil,  154  Pa.  582, 1893 ;  Petri  v.  Car- 
racciolo, 33  Pa.  Super.  312,  1907;  (f)  they  apply  with  equal  force  to 
oral  instructions  given  at  request  of  counsel:  Wills  v.  Hardcastle,  19 
Pa.  Super.  525,  1902;  Sibley  v.  Robertson,  212  Pa.  24,  1905;  Petri  v. 
Carracciolo,  33  Pa.  Super.  312,  1907;  (g)  but  a  charge  is  regularly  on 
the  record  without  filing,  if  it  is  contained  in  a  formal  bill  of  excep- 
tions signed  by  the  judge:  Edwards  v.  Gimbel,  187  Pa.  78,  1898  (see 
appellee 's  paper-book) ;  the  Supreme  Court  in  this  case  indicated 
that  exceptions  to  the  charge  need  not  be  taken  at  the  time  of  trial 
if  a  formal  bill  of  exceptions  is  subsequently  signed  by  trial  judge; 
(h)  failure  to  except  to  charge  or  file  approved  copy  thereof  is  not  ex- 
cused by  general  practice  of  lower  court  to  direct  exceptions  to  be 
noted  for  both  parties:  Christner  v.  John,  2  Pa.  Super.  78,  1896;  (i) 
refusal  of  court  to  answer  points  must  be  excepted  to:  Ensminger  v. 
Hess,  192  Pa.  432,  1899;  (j)  and  there  must  also  be  exception  taken 
to  answers  to  points:  Wills  v.  Hardcastle,  19  Pa.  Super.  525,  1902; 
Com.  v.  Mock,  23  Pa.  Super.  51,  1903;  Sibley  v.  Robertson,  212  Pa. 
24,  1905;  Fowler  Co.  v.  Engine  Wks.,  227  Pa.  314,  1910;  Com.  v. 
Johnston,  44  Pa.  Super.  218,  1910;  (k)  where  both  parties  consent, 
exceptions  may  be  allowed  to  be  filed  nunc  pro  tune  after  quashing 
appeal  for  want  of  exceptions :  Pool  v.  White,  175  Pa.  459,  1896. 

§  148.  Points  and  Charge — Written  Answers  Required — 
Filing — Civil  Cases.  Whenever,  in  the  trial  of  a  cause 
before  any  of  the  judges  of  the  several  courts  of  common 
pleas  within  this  commonwealth,  if  any  of  the  parties  or 
their  counsel  shall  request  the  court  to  charge  the  jury  on 
particular  points  of  law  drawn  up  in  writing  and  handed  to 
the  court  before  the  close  of  the  argument  to  the  jury,  the 
judge  who  charges  the  jury  shall  reduce  the  answers  to  the 
points  in  writing  and  read  them  to  the  jury  before  they  re- 

212 


CHARGE  AND  POINTS. 


§§  146-162]  Filing  Charge,  etc.— Exceptions        §  148,  (l)-(2)  (a) 

tire  from  the  bar  to  consider  the  verdict;  and  the  said 
points  and  answers  thereto  shall  be  filed  immediately  by 
the  court  or  judge,  and  become  part  of  the  records  of  the 
case  for  the  purposes  of  error.  Act  of  March  24,  1877,  §i, 
P.  L.  38,  3  Purd.  3357,  pi.  3. 

The  charge  and  answers  of  the  court  to  points,  in  all 
cases  where  filed,  shall  be  part  of  the  record  for  the  pur- 
pose of  assignment  of  errors.  Act  of  March  24,  1877,  §2, 
P.  L.  38,  3  Purd.  3357,  pi.  4. 

(1)  Order  of  Trial  Judge  Necessary,    (a)  The  charge  is  not  of  re- 
cord unless  filed  by  the  judge  or  approved  by  him  and  filed  by  his  or- 
der: Rosenthal  v.  Ehrlicher,  154  Pa.  396,  1893;  Connell  v.  O'Neil,  154 
Pa.  582, 1893;  Hill  v.  Egan,  160  Pa.  119, 1894;  Com.  v.  Arnold,  161  Pa. 
320, 1894;  Pool  v.  White,  171  Pa.  500, 1895;  Phila.  v.  Institute,  177  Pa. 
37,  1896;  Smith  v.  Times  Pub.  Co.,  178  Pa.  481,  1897;  Harris  v.  Trac- 
tion Co.,  180  Pa.  184, 1897;  (b)  it  is  the  personal  duty  of  the  judge  to 
examine  the  exceptions,  where  they  are  merely  noted  by  the  stenogra- 
pher and  the  charge  is  filed  of  record,  and  to  certify  them  by  his  own 
proper  signature  and  his  duty  cannot  be  delegated  by  him  or  trans- 
ferred by  the  legislature  to  any  subordinate:  Com.  v.  Arnold,  161  Pa. 
320,  1894;  (c)  if  the  trial  judge  is  unable  to  file  charge  or  allow  bill 
of  exceptions,  another  judge  of  same  court  may  do  so:  Mintzer  v. 
Hogg,  192  Pa.  137,  1899;  (d)  appellate  court  will  not  consider  paper 
signed  by  stenographer  stating  that  certain  instructions  contained  in 
certified  record  had  been  incorrectly  transcribed  by  him:  Beringer  v. 
Lutz,  179  Pa.  1,  1897;  (e)  trial  judge  may  correct  stenographer's  re- 
port of  charge:  Toddes  v.  Hafer,  25  Pa.  Super.  78,  1904;  (f)  he  must 
sign  record  himself,  and  it  is  not  enough  that  his  signature  be  pasted 
on  his  notes  of  evidence:  Yost  v.  Clark,  25  Pa.  Super.  144,  1904;  (g) 
an  indorsement  on  plaintiff's  points  that  bill  was  "sealed  for  defend- 
ants in  all  generally ' '  is  insufficient :  Harton  v.  Harton,  28  Pa.  Super. 
492,  1905;  (i)  also  similar  endorsement  on  opinion  of  court  refusing 
new  trial:  Campbell  v.  Harton,  28  Pa.  Super.  494,  1905. 

(2)  Procedure  Under  Act  1877 — Exceptions  Necessary,    (a)  "The 
proper  practice  since  the  Act  of  1877  is  to  except  to  the  charge  gen- 
erally before  verdict,  as  was  done  before  the  passage  of  that  act.  The 
party  excepting  should  at  the  same  time  request  that  the  charge 

213 


LOWER  COURT  RECORD. 


§  148  (2)  (a)-§  149      Charge — Points — Criminal  Cases  [Chap.  9, 

and  answers  to  points  be  written  out  and  filed  by  the  stenographer. 
If  other  exceptions  than  that  to  the  judge's  charge  have  been  taken, 
the  request  may  relate  to  the  notes  of  the  trial.  This  request  may  be 
entered  on  the  stenographer's  notes,  but  the  better  practice  is  to  write 
it  out  and  file  it  with  the  prothonotary.  The  request  is  then  granted, 
the  formal  order  directing  that  a  copy  of  the  charge,  or  of  the  notes 
of  the  trial,  as  the  case  may  be,  be  written  out  and  filed,  is  entered  on 
the  minute  book  or  filed  in  the  case.  The  stenographer  then  makes 
and  files  the  copy,  and  the  record  is  completely  made  up.  Upon  an 
appeal  the  appellant  may  assign  error  to  every  ruling  upon  the  ad- 
mission or  rejection  of  evidence  which  was  excepted  to  on  the  trial, 
and  to  any  instruction  appearing  in  the  charge,  or  any  answer  to 
points,  whether  the  particular  point  has  been  previously  made  the  sub- 
ject of  an  exception  or  not."  Per  Williams,  J.,  in  Rosenthal  v.  Ehr- 
licher,  154  Pa.  396,  1893.  See  cases  under  §147,  note  (4).  (b)  Re- 
fusal of  court  to  answer  points,  or  answers  thereto,  must  be  excepted 
to  in  order  to  assign  error  thereto:  Ensminger  v.  Hess,  192  Pa.  432, 
1899;  Wills  v.  Hardcastle,  19  Pa.  Super.  525,  1902;  Com.  v.  Mock,  23 
Pa.  Super.  51,  1903 ;  Sibley  v.  Robertson,  212  Pa.  24,  1905. 

(3)  Failure  to  Answer  Points.  Failure  of  court  to  answer  points  is 
not  reversible  error  if  such  points  were  sufficiently  answered  in  the 
general  charge.  For  cases  on  this  subject,  see  §228,  note  (22),  below. 

§149.  -  Criminal  Cases.    If  during  the  trial  upon 

any  indictment  for  murder  or  voluntary  manslaughter,  the 
court  shall  be  required  by  the  defendant  or  defendants  to 
give  an  opinion  upon  any  point  submitted  and  stated  in 
writing,  it  shall  be  the  duty  of  the  court  to  answer  the  same 
fully,  and  file  the  point  and  answer  with  the  records  of  the 
case.  Act  March  31,  1860,  §58,  P.  L.  427,  2,  Purd.  1463,  pi. 

84- 

(1)  Practice,  (a)  Answers  to  points  submitted  are  required  to  be 
filed  of  record  in  homicide  cases:  Haines  v.  Com.  99  Pa.  410,  1882;  (b) 
under  Act  May  19, 1874,  (§151,  below)  providing  that  exceptions  in  all 
other  criminal  cases  may  be  taken  as  in  civil  cases,  it  is  not  required 
that  court  shall  file  charge  in  writing  or  answers  to  points  or  rulings 
on  questions  of  evidence  in  those  cases :  Haines  v.  Com.,  99  Pa.  410, 
1882. 

214 


EQUITY  CASES. 

§§  146-162]  Findings   of   Fact  and  Law  §  150 

§150.  Findings  of  Fact  and  Law  in  Equity  Cases.  The 
counsel  for  the  respective  parties  may  present  to  the  judge, 
sitting  as  chancellor,  requests  for  findings  both  of  fact  and 
law.  After  hearing  the  evidence,  and  the  argument  of 
counsel,  the  judge  may  adopt  or  affirm  these  requests,  or 
any  of  them,  qualify  or  deny  them,  or  state  his  findings  of 
fact  or  of  law  in  his  own  language.  The  requests  so  pre- 
sented, with  the  answers  thereto,  and  the  findings  of  the 
judge,  both  of  law  and  fact,  shall  be  filed  by  the  prothono- 
tary,  and  become  thereby  part  of  the  record  of  the  court  in 
the  said  case.  Supreme  Court  Equity  Rule  62. 

(1)  Duty  of  the  Court — Findings,     (a)  It  is  the  duty  of  the  court 
to  set  forth  the  findings  of  fact  and  conclusions  of  law  in  such  de- 
tail as  to  relieve  the  Supreme  Court  from  finding  facts  for  itself 
and  drawing  its  own  conclusions,  as  well  as  to  give  the  parties  an  op- 
portunity to  except  to  the  findings  of  fact  on  which  the  decree  may 
partly,  if  not  wholly,  be  predicated:  Fitzsimmons  v.  Robb,  173  Pa. 
645,  1896;  Pittsburg  Stove  Co.  v.  Stove  Co.,  208  Pa.  37,  1904;  Gaynor 
v.  Quinn,  212  Pa.  362,  1905 ;  Hastings  Water  Co.  v.  Boro.,  216  Pa.  178, 
1907;  (b)  but  the  court  will  not  reverse  where  the  findings  are  not  ex- 
pressed  in  separate   and  numbered  clauses,  provided  they  are   ex- 
pressed severally  and  are  easily  capable  of  separate  consideration: 
Schmidt  v.  Baizley,  184  Pa.  527,  1898;  Zerbey  v.  Allan,  215  Pa.  383, 
1906 ;  (c)  and  where  a  finding  of  the  only  fact  in  issue  is  embodied  in 
the  decree,  it  will  be  considered  a  substantial  compliance  with  the 
rule:  Pfeifer  v.  Rabiser,  2  Pa.  Super.  355,  1896;  (d)  Supreme  Court 
will  reverse  a  decree  of  the  court  of  common  pleas  appointing  a  re- 
ceiver where  the  court  below  made  no  findings  of  the  facts  upon  which 
the  decree  was  based :  James  v.  Weir,  213  Pa.  135,  1905. 

(2)  Exceptions  Necessary.    Equity  Rule  67  (§184  (B)),  provides 
that  on  appeal  to  Supreme  or  Superior  Court  only  such  matters  as 
have  been  excepted  to  and  passed  upon  by  lower  court  shall  be  as- 
signed for  error.     This  rule  is  mandatory:  Beatty  v.  Harris,  205  Pa. 
377,  1903;  Phila.  etc.,  Ry.  v.  Ry.,  206  Pa.  343,  1903;  Black  v.  Black, 
206  Pa.  116,  1903;  Swope  v.  Snyder,  209  Pa,  352,  1904;  Kenworthy  v. 
Trust  Co.,  218  Pa.  286,  1907;  Thomas  v.  Borden,  222  Pa.  184,  1908; 
Page  v.  Lytle,  229  Pa.  198,  1910. 

215 


LOWER  COURT  RECORD. 


§  151,  (1)  (a)-(c)      Exceptions  to  Evidence — Criminal  Cases          [Chap.  9, 

§151.  Exceptions  to  Evidence — Criminal  Cases.  Upon 
the  trial  of  any  indictment  for  murder  or  voluntary  man- 
slaughter it  shall  and  may  be  lawful  for  the  defendant  or 
defendants  to  except  to  any  decision  of  the  court  upon  any 
point  of  evidence  or  law,  which  exception  shall  be  noted  by 
the  court,  and  filed  of  record  as  in  civil  cases,  and  a  writ  of 
error  to  the  Supreme  Court  may  be  taken  by  the  defen- 
dant or  defendants,  after  conviction  and  sentence.  Act 
March  31,  1860,  §57,  P.  L.  2  Purd.  1463,  pi.  83. 

On  the  trial  of  all  cases  of  felonious  homicide,  and  all 
such  other  criminal  cases  as  are  exclusively  triable  and 
punishable  in  the  courts  of  oyer  and  terminer  and  gen- 
eral jail  delivery,  exception  to  any  decision  of  the  court 
may  be  made  by  the  defendant,  and  a  bill  thereof  shall  be 
sealed,  in  the  same  manner  as  is  provided  and  practiced  in 
civil  cases ;  and  the  accused,  after  conviction  and  sentence, 
may  remove  the  indictment,  record  and  all  proceedings  to 

the  Supreme  Court In  all  other  criminal 

cases,  exceptions,  as  aforesaid,  may  be  taken,  and  in  cases 
charging  the  offence  of  nuisance,  or  forcible  entry  and  de- 
tainer, or  forcible  detainer,  exceptions  to  any  decision  or 
ruling  of  the  court  may  also  be  taken  by  the  common- 
wealth, and  writs  of  error  and  certiorari,  as  hereinbefore 
provided,  may  be  issued  from  the  Supreme  Court  to  all 
criminal  courts,  when  specially  allowed  by  the  Supreme 
Court  or  any  Judge  thereof.  Act  May  19,  1874,  §i,  P.  L. 
219,  2  Purd.  1464,  pi.  87. 

(1)  Jurisdiction — Review,  (a)  Right  to  bills  of  exceptions  in 
criminal  cases  was  not  given  by  common  law:  Schoeppe  v.  Com.,  65 
Pa.  51,  1870;  (b)  nor  by  Statute  of  Westminster:  Middleton  v.  Com. 
2  Watts  285,  1834;  (c)  it  depends  entirely  on  Act  of  1860,  above, 
which  extends  right  in  cases  of  murder  and  manslaughter,  and  on  Act 
of  1874,  above,  which  extends  the  Statute  of  Westminster  to  all  other 

216 


EXCEPTIONS  TO  EVIDENCE. 


§§146-162]  Criminal  Cases  §  151  (1)  (d)-(4)  (a) 

cases:  Haines  v.  Com.,  99  Pa.  410,  1882;  (d)  but  latter  act  does  not 
authorize  review  of  matters  which  are  within  the  discretion  of  lower 
court:  Alexander  v.  Com.,  105  Pa.  1,  1884;  (e)  nor  does  it  give  right 
to  ask  court  to  declare  the  sufficiency  or  insufficiency  of  entire  evi- 
dence to  support  a  conviction,  but  allows  exceptions  only  to  decisions 
on  points  of  evidence  or  of  law :  Com.  v.  Ferguson,  32  L.  I.  127,  1875 ; 
(f )  when  prisoner  has  been  acquitted  by  jury,  appellate  court  has  no 
power  to  examine  rulings  of  trial  judge  and  state  whether  they  are 
right  or  wrong:  Com.  v.  Coble,  9  Pa.  Super.  215,  1899;  Com.  v.  Still- 
wagon,  13  Pa.  Super.  547,  1900;  (g)  in  cases  of  nuisance  or  forcible 
entry  or  detainer,  power  to  grant  new  trial  after  acquittal  because  of  a 
misdirection  by  judge,  is  vested  solely  in  appellate  court :  Com.  v. 
Wallace,  7  Pa.  Super.  405,  1898;  (h)  appellant  must  show  that  a  sub- 
stantial error  has  been  committed:  Fife  v.  Com.,  29  Pa.  429,  1857; 
Com.  v.  Ferguson,  32  Leg.  Int.  127,  1875;  Com.  v.  Van  Horn,  188  Pa. 
143,  1898. 

(2)  Exceptions,    (a)  Prior  to  Act  of  1874,  bill  of  exceptions  would 
be  considered  on  appeal  only  in  cases  of  murder  and  voluntary  man- 
slaughter, even  though  bill  was  sealed  by  court  below:  Middleton  v. 
Com.,  2  Watts  285,  1834;  (b)  bill  may  now  be  taken  by  defendant  in 
all  cases :  Com.  v.  Ferguson,  32  L.  L  127,  1875 ;  Hutchison  v.  Com.,  82 
Pa.  472,  1877 ;  (c)  but  act  does  not  authorize  review  of  matters  of  dis- 
cretion of  court  below:  Alexander  v.  Com.,  105  Pa.  1,  1884;  (d)  nor 
does  the  above  section  of  Act  of  1860  (amending  Act  Nov.  6,  1856), 
authorize  exception  to  charge  of  court:  Com.  v.  Jacoby,  1  Pitts.  481, 
1858;  but  that  is  provided  for  by  §58  of  Act  of  1860  (§149,  above), 
and  also  by  Act  of  1874;  (e)  appellate  court  can  review  only  points 
so  noted  and  filed  of  record:  Fife  v.  Com.,  29  Pa.  49,  1857;  Hopkins 
v.  Com.,  50  Pa.  9,  1865;  Johnson  v.  Com.,  115  Pa.  369,  1886;  (f)  there 
is  no  general  statute  giving  right  to  take  exceptions  in  civil  cases,  but 
our  practice  is  founded  on  the  Statute  of  Westminster,  §161,  below. 

(3)  Exceptions  by  Commonwealth.    On  trial  of  nuisance,  forcible 
entry  and  detainer,  and  forcible  detainer,  exceptions  may  be  taken 
by  the  commonwealth  and  bill  sealed  as  in  civil  cases :  Com.  v.  Bradney, 
126  Pa.  199,  1889.    Under  Act  May  19,  1897,  §22  P.  L.  67,  2  Purd. 
1467,  pi.  90,  the  requirement  of  a  special  allowance  to  commonwealth 
was  repealed.    See  §46,  notes  (11),  (12). 

(4)  Kefusal  of  Judge  to  Seal  Bill,     (a)  If  trial  judge  refuses  to 
seal  bill,  defendant  may  have  writ  under  Statute  of  Westminster  2 

217 


LOWER  COURT  RECORD. 


§  151  (4)  (a)-§  153  Stenographer's  Notes  [Chap.  9, 

(§161,  below) :  Haines  v.  Com.  99  Pa.  410,  1882,  (see  §161,  note  (8)  ) ; 
(b)  he  is  not  bound  to  seal  bill  unless  presented  to  him  within  time 
required  by  rules  of  court :  Haines  v.  Com.,  100  Pa.  317,  1882. 
For  Forms,  see  Appendix,  §§32,  33. 

§152.  Stenographic  Notes  of  Proceedings — Orphans' 
Court.  The  official  stenographers  of  the  several  orphans' 
courts  shall  take  full  stenographic  notes  of  such  proceed- 
ings as  the  judges  of  such  courts  shall  direct,  and,  when 
so  directed  to  report  proceedings,  shall,  in  any  proceeding 
in  any  trial  of  fact,  report  the  testimony  of  all  witnesses 
examined  and  matters  offered  in  evidence,  and  the  ruling 
of  the  court  upon  the  admission  or  rejection  thereof,  as 
well  as  the  other  rulings  and  adjudications  of  the  trial 
judges.  Act  May  i,  1907,  §3,  P.  L.  135,  5  Purd.  6050,  pi.  3. 

§153.  — Common  Pleas  and  Criminal  Courts.  The  of- 
ficial stenographers  of  the  several  courts  of  common 
pleas,  when  engaged  in  such  courts,  or  in  the  courts  of 
oyer  and  terminer,  general  jail  delivery  and  quarter 
sessions  of  the  peace,  shall  take  full  stenographic  notes  of 
the  testimony  in  all  judicial  proceedings  in  any  trial  of  fact, 
at  law  or  in  equity,  together  with  the  judge's  charge,  and 
of  any  and  every  ruling,  order  or  remark  of  the  trial  judge, 
or  judges,  relating  to  the  case  on  trial,  made  in  the  pres- 
ence of  the  jury,  in  any  stage  of  the  proceedings,  to  which 
ruling,  order  or  remark  either  party  may  except  in  the 
same  manner  and  with  the  same  effect  as  is  now  practiced 
in  relation  to  the  judge's  charge;  and  upon  any  trial  with- 
out a  jury,  shall  likewise  report  the  proceedings,  including 
the  testimony  of  all  witnesses  examined  and  matters  of- 
fered in  evidence,  and  the  rulings  of  the  court  upon  the  ad- 
mission or  rejection  thereof,  and  the  findings  of  the  court. 
And  it  shall  also  be  the  duty  of  such  stenographers  to  take 

218 


STENOGRAPHER'S  NOTES. 


§§  146-162]  Transcript  §§  154,  155 

full  stenographic  notes  of  such  other  matters,  in  connection 
with  the  business  of  the  courts,  as  the  judges  of  the  respec- 
tive courts,  from  time  to  time,  may  direct.  Act  May  i, 
1907,  §3,  p-  L.  135,  5  Purd.  6050,  pi.  4. 

The  law  judges  of  each  of  the  several  courts  of  oyer  and 
terminer  and  general  jail  delivery,  and  of  the  courts  of 
quarter  sessions  of  the  peace,  shall  employ  the  official  sten- 
ographer or  stenographers  of  the  courts  of  common  pleas 
of  the  particular  county,  to  report  the  proceedings  of  the 
said  court,  whenever  requested  so  to  do  by  any  defendant 
or  defendants,  or  his,  her  or  their  counsel,  before  or  during 
the  trial  of  any  case  in  any  of  said  courts.  Act  May  5, 
1911,  §i,  P.  L.  161. 

§  154.— When  Transcript  Shall  be  Made.  The  official 
stenographer  shall  transcribe  the  notes  of  the  evidence 
taken  upon  the  trial  of  any  case,  under  the  following  cir- 
cumstances and  those  only:  (a)  When  directed  by  the 
court  so  to  do:  or  (b)  when  an  appeal  has  been  taken  to 
the  Supreme  or  Superior  Court:  or  (c)  when  he  shall  be 
paid  for  a  copy  thereof  by  a  person  requesting  him  to  tran- 
scribe it.  Act  May  n,  1911,  §3,  P.  L.  279. 

(1)  Death  of  Stenographer  before  Transcribing  Notes.  When 
stenographer  dies  before  translating  notes,  and  no  one  is  able  to 
translate  them,  their  loss  may  be  supplied  in  same  manner  as  lost  or 
destroyed  records :  Walter  v.  Sun  Fire  Office,  165  Pa.  381,  1895. 

§  155.  —  Filing  of  Transcript — Notice — Practice — Certi- 
fication— Form.  When  the  evidence  in  any  case  is  trans- 
scribed,  it  shall  be  the  duty  of  the  official  stenographer  to 
lodge  the  same  with  the  prothonotary  or  clerk  of  the  court, 
and  notify  the  parties  interested  or  their  counsel  that  the 
same  will  be  duly  certified  and  filed,  so  as  to  become  part 
of  the  record,  if  no  objections  be  made  thereto  within  fif- 

219 


LOWER  COURT  RECORD. 


§  155  Stenographer's  Notes — Transcript  [Chap.  9, 

teen  days  after  such  notice.  If  objections  be  made,  the 
matter  shall  be  heard  by  the  court,  and  such  order  made 
regarding  the  same  as  shall  be  necessary  in  order  to  com- 
port with  the  occurrences  at  the  trial.  If  no  objections  be 
made,  or  when,  after  objection,  the  transcript  shall  have 
been  so  made  to  comport  with  the  occurrences  at  the  trial, 
said  transcript  shall  be  duly  certified  by  the  official  sten- 
ographer and  by  the  trial  judge,  shall  be  filed  of  record  in 
the  case,  and  shall  be  treated  as  official  and  part  of  said 
record  for  the  purposes  of  review  upon  appeal,  and  shall 
be  considered  as  prima  facie  accurate  whenever  thereafter 
offered  in  evidence  in  the  same  or  any  other  proceeding, 
without  the  necessity  of  calling  the  stenographer  as  a  wit- 
ness to  prove  the  same.  Act  May  n,  1911,  §4,  P.  L.  279. 

Every  official  stenographer  shall  make,  or  cause  to  be 
made,  from  his  stenographic  notes  of  any  trial  or  other 
matter  of  which  a  copy  may  be  required,  a  correct  type 
written  copy  or  copies,  as  hereinafter  provided ;  and  to  the 
filing  copy  shall  attach  a  certificate  in  the  following  form: 

I  hereby  certify  that  the  proceedings,  evidence  and 
charge  are  contained  fully  and  accurately  in  the  notes 
taken  by  me  on  the  trial  of  the  above  cause,  and  that  this 
copy  is  a  correct  transcript  of  the  same. 


Official  Stenographer. 

And  in  the  case  of  any  trial  or  proceeding  before  a  court, 
without  a  jury,  shall  attach  a  certificate  in  the  same  form, 
omitting  reference  to  the  charge.  Act  May  I,  1907,  §4,  P. 
L.  135,  5  Purd.  6051,  pi.  5. 

Such  transcript  shall  be  approved  by  the  trial  judge,  if 
correct,  by  endorsing  as  follows: 

The  foregoing  record  of  the  proceedings  upon  the  trial 

220 


STENOGRAPHER'S  NOTES. 


§§146-162]  Certification  of  Notes  §  155,  (1)  (a)-(i) 

of  the  above  cause,  is  hereby  approved  and  directed  to  be 
filed. 


Judge. 
Act  May  i,  1907,  §5,  P.  L.  135,  5  Purd.  6051,  pi.  7. 

(1)  Certification  of  Notes,  (a)  Appeal  will  be  quashed  where 
notes  of  testimony  have  not  been  certified  or  approved  by  court:  Hill 
v.  Egan,  160  Pa.  119, 1894;  Pool  v.  White,  171  Pa.  500, 1895;  Harris  v. 
Traction  Co.,  180  Pa.  184,  1897;  Yoast  v.  Beatty,  12  Pa.  Super.  219, 
1900;  Herlehy  v.  Shrader,  20  Pa.  Super.  438, 1902;  Com.  v.  Barton,  20 
Pa.  Super.  447,  1902;  O'Brien's  Est.,  22  Pa.  Super.  475,  1903;  Levy 
v.  Singer  Co.,  32  Pa.  Super.  117,  1907;  Dietrich  v.  Ins.  Co.,  32  Pa. 
Super.  234,  1906;  Thompson  v.  Petriello,  33  Pa.  Super.  651,  1907; 
Crane  Marks  Co.  v.  Gordon,  33  Pa.  Super.  315,  1907;  Thomas  v.  ttor- 
den,  222  Pa.  184,  1908;  Lister  v.  Telephone  Co.,  39  Pa.  Super.  321, 
1909;  Warner  v.  R.  R.,  39  Pa.  Super.  282,  1909;  Moyer  v.  Phillips,  40 
Pa.  Super.  1,  1909;  Schmidt  Brew.  Co.  v.  Transit  Co.,  42  Pa.  Super. 
168,  1910;  Fitzpatrick  v.  Mortimer,  41  Pa.  Super.  587,  1910;  see  also 
§147,  note  (4)  (c)  and  (d)  and  §161,  note  (1)  (d) ;  (b)  a  loose  paper 
not  attached  to  the  stenographer's  report  and  not  filed  until  after  the 
notes  of  testimony  have  been  removed  to  the  appellate  court  is  not 
enough:  Farley  v.  Ry.,  32  Pa.  Super.  413,  1907;  American  Car  Co.  v. 
R.  R.,  218  Pa.  519,  1907;  Lister  v.  Telephone  Co.,  39  Pa.  Super.  321, 
1909;  (c)  court  below  cannot  certify  notes  of  testimony  after  record 
has  been  removed  by  appeal :  Fox  v.  Seabury,  14  Dist.  57,  1905 ;  Mitch- 
ell v.  Edeburn,  37  Pa.  Super.  223,  1908;  (d)  where  notes  are  properly 
certified,  but  carbon  copy,  without  judge's  signature,  is  sent  up  with 
record,  original  may  be  brought  up  after  motion  to  quash:  Ripka  v. 
Ins.  Co.,  36  Pa.  Super.  517,  1908;  (e)  signature  of  judge  pasted  on 
stenographer's  notes  without  knowledge  of  judge  is  insufficient :  Yoas* 
v.  Clark,  25  Pa.  Super.  144,  1904;  (f)  nor  is  signature  of  court  sten- 
ographer sufficient:  Beringer  v.  Lutz,  179  Pa.  1,  1897;  O'Brien's  Est., 
22  Pa.  Super.  475,  1903;  (g)  nor  certificate  of  counsel  that  evidence 
as  printed  contains  all  pertinent  facts:  Crane  Marks  Co.  v.  Gordon, 
33  Pa.  Super.  315,  1907;  (h)  nor  is  it  sufficient  for  court  merely  to 
"approve"  notes  of  testimony:  Harris  v.  Traction  Co.,  180  Pa,  184, 
1897;  Yoast  v.  Beatty,  12  Pa.  Super.  219,  1900;  (i)  or  certify  that  the 
notes  are  "substantially  correct":  Rothschild's  Sons  Co.  v.  Mc- 

221 


LOWER  COURT  RECORD. 


§  155  (1)  (j)-§  156  Stenographer's  Notes  [Chap.  9, 

Laughlin,  12  Pa.  Super.  612,  1900;  (j)  it  is  not  necessary  for  court  to 
sign  each  exception  to  findings:  Mifflin  Twp.  Poor  Dist.  v.  Poor  Dist., 
37  Pa.  Super.  611,  1908 ;(  k)  where  judge  states  notes  are  incomplete 
and  fails  to  approve  same,  assignments  of  error  based  thereon  can- 
not be  sustained:  Kershner  v.  Kemmerling,  24  Pa.  Super.  181,  1904; 
(1)  appeal  will  be  quashed  for  want  of  judge's  certificate,  even  though 
he  died  before  case  was  called  for  argument  in  appellate  court,  where 
it  appears  appellant  had  several  months  to  obtain  such  certificate: 
Warner  v.  R.  R.,  39  Pa.  Super.  282,  1900;  (m)  stenographer's  notes 
cannot  be  certified  by  a  firm :  Rosenthal  v.  Ehrlicher,  154  Pa.  396, 
1893. 

(2)  Correcting  Notes,  (a)  The  court  has  power  to  correct  notes: 
Toddes  v.  Hafer,  25  Pa.  Super.  78,  1904;  (b)  and  it  has  been  held  that 
where  trial  judge  states  transcript  is  wrong  in  certain  particulars,  and 
that  his  own  notes  and  recollections  are  to  certain  effect,  the  latter 
will  be  allowed  to  govern  notwithstanding  a  statutory  provision  that 
stenographer's  notes  should  be  considered  best  evidence  in  case  of 
dispute:  Com.  v.  Fitzpatrick,  1  Pa.  Super.  518,  1896;  Com.  v.  Van 
Horn,  188  Pa.  143,  1898;  (c)  errors  in  punctuation  made  by  stenogra- 
pher in  reporting  charge  should  be  corrected  by  trial  judge  before 
record  is  certified :  Com.  v.  Morrison,  193  Pa.  613,  1899. 

§  1 56.  -  -  Excluding  Part  of  Transcript  by  Agreement- 
Order  of  Court — Printing  by  Appellee — Cost — Printing 
Plans  and  Drawings.  The  appellants  and  appellees,  by 
writing  filed  and  approved  by  the  lower  court,  may  agree 
that  any  part  of  the  evidence  appearing  in  the  transcript  as 
certified  and  filed  shall  be  considered  as  excluded  there- 
from upon  the  review  of  the  case  by  the  Supreme  Court  or 
Superior  Court;  and,  if  they  cannot  agree,  the  court  below, 
upon  motion  of  appellants  and  notice  to  appellee,  may  or- 
der that  any  part  or  portion  of  the  evidence  may  be  omitted 
by  appellant  in  printing  the  transcript  for  the  purpose  of 
review  in  such  case :  Provided,  however,  That  appellees 
may  themselves  print  such  evidence,  which  printing  shall 
be  at  their  own  expense,  unless  it  be  otherwise  ordered  by 
the  appellate  court;  or  the  appellate  court  may  order  any 

222 


STENOGRAPHER'S  NOTES. 


§§  146-162]  Filing— Cost  §§  157,  158 

part  or  all  thereof  to  be  printed  by  appellant,  whenever 
said  court  shall  deem  it  necessary  so  to  do.  Act  May  n, 
1911,  §5,  P.  L.  279. 

When  counsel  do  not  agree  as  to  the  necessity  for  print- 
ing plans  and  drawings,  the  matter  shall  be  submitted  to 
the  trial  judge,  whose  decision  shall  be  conclusive.  Su- 
preme Court  Rule  24;  Superior  Court  Rule  21. 

§157.  -Daily  Transcript  May  be  Required.  During 
the  progress  of  the  trial  of  any  cause,  upon  the  order  of  the 
court  upon  its  own  motion,  or  upon  motion  of  counsel  and 
allowance  by  the  court,  the  official  stenographer  reporting 
the  proceedings  shall,  from  the  stenographic  notes  thereof, 
make  three  typewritten  copies,  and  from  day  to  day  as  the 
case  progresses  supply  one  copy  to  the  court,  one  copy  to 
the  plaintiff  and  one  copy  to  the  defendant,  or  to  their 
counsel;  and  within  a  reasonable  time  after  the  comple- 
tion of  the  trial,  to  certify  a  complete  copy,  as  hereinbefore 
provided,  and  supply  to  the  parties  or  their  counsel  any 
portion  of  such  copies,  not  previously  supplied,  as  may  be 
necessary  to  complete  the  record.  But,  where  the  trial 
judge  and  counsel  representing  the  parties  to  the  cause  so 
agree,  such  copies  need  not  be  made,  unless  subsequently 
directed  by  the  court,  of  its  own  motion,  or  upon  motion  of 
counsel  and  allowance  by  the  court.  Act  May  i,  1907, 
§7,  P.  L.  135,  5  Purd.  6051,  pi.  10. 

§158.  -  Notes  to  be  Filed  When  Transcript  not  Re- 
quired— Cost  to  Counsel.  In  all  cases  in  which  copies  of 
the  stenographic  notes  are  not  made  or  required  as  here- 
inbefore provided,  it  shall  be  the  duty  of  the  official  steno- 
grapher to  file  said  stenographic  notes  in  the  proper  office 
for  the  record  of  said  proceedings.  If  thereafter  the  court 
or  counsel  desire  a  copy  or  copies  of  the  stenographic  notes 

223 


LOWER  COURT  RECORD. 


§  159  Stenographer's  Notes  [Chap.  9, 

so  filed,  it  shall  be  the  duty  of  the  official  stenographer  to 
make  the  same;  and,  if  ordered  by  the  court,  compensation 
therefor  shall  be  made  as  provided  in  section  eight  of  this 
act;  and,  if  ordered  by  counsel,  without  an  order  of  the 
court,  then  the  compensation  therefor  shall  be  paid  by  the 
party  ordering  the  same,  at  the  regular  rate  for  the  tran- 
scription of  notes,  as  provided  in  section  eight  of  this  act. 
Act  May  i,  1907,  §7,  P.  L.  135,  5  Purd.  6052,  pi.  u. 

§159.  —  Payment  for  Transcript.  —  (A)  Generally, 
Every  official  stenographer  shall  be  paid,  in  addition  to  the 
compensation  provided  in  section  six  of  this  act,  fifteen 
cents  for  each  one  hundred  words  of  every  copy  of  the 
stenographic  notes  of  trials  and  of  other  matters  in  con- 
nection with  the  business  of  the  court,  that  are  furnished 
to  the  court  or  filed  of  record,  and  five  cents  for  each  one 
hundred  words  of  every  copy  that  is  given  to  counsel  or  to, 
parties,  if  ordered  so  that  they  may  be  typewritten  at  the 
same  time  with  the  filing  copy;  payment  for  such  copies 
to  be  made  by  the  county  in  which  the  case  is  pending,  or 
for  which  the  work  is  performed  upon  the  order  of  the 
presiding  judge.  Act  May  i,  1907,  §8,  P.  L.  135,  5  Purd. 
6052,  pi.  12. 

(B)  Cases  in  Oyer  and  Terminer.     In  all  cases 

tried  in  the  several  courts  of  oyer  and  terminer  and  general 
jail  delivery,  the  defendant  or  defendants  shall  be  furnish- 
ed with  a  copy  of  the  notes  of  testimony  taken  at  his,  her 
or  their  request,  which  said  notes  shall  be  paid  for  by  the 
county  in  which  said  case  is  tried.  Act  May  5,  1911,  §i, 
P.  L.  161. 

(C)  When  it  is  Duty  of  Stenographer  to  File  Tran- 
script Without  Order Payment   for  which 

[copy  of  transcript  filed  of  record  in  cases  where  it  is  the 
duty  of  stenographer  to  file  same  without  order  of  court] 

224 


STENOGRAPHER'S  NOTES. 


§§  146-162]  Hearing  before  Master,  etc.  §  160 

shall  be  made  in  the  same  manner  as  if  directed  by  the 
court,  but  the  court  may  direct  additional  copies  in  such 
cases  to  be  made  at  the  same  time  with  the  filing  copy  as 
hereinbefore  provided.  Act  May  I,  1907,  §7,  P.  L.  135,  5 
Purd.  6052,  pi.  ii. 

(1)     Testimony  in  Oyer  and  Terminer.    See  §153,  above. 

§160.  —  Hearing  Before  Examiner,  etc. — Transcript 
to  be  Furnished — Evidence — Compensation.  Any  official 
stenographer,  by  the  agreement  of  the  parties  to  any  suit, 
action,  or  proceeding,  or  of  their  counsel,  before  any  ex- 
aminer, master  in  chancery,  special  master,  referee,  com- 
missioner, auditor,  or  other  like  officer,  appointed  by  any 
of  the  said  courts,  in  any  suit,  action,  or  proceeding  therein 
pending,  may  take,  under  the  direction  of  any  such  ex- 
aminer, master  in  chancery,  special  master,  referee,  com- 
missioner, auditor,  or  like  officer,  full  stenographic  notes 
of  such  proceedings,  and  in  such  cases  shall  furnish  to  such 
officer,  upon  his  request,  an  accurate  typewritten  copy  of 
such  notes ;  which  copy,  when  approved  in  writing  by  such 
officer  and  filed  in  the  office  of  the  proper  court  wherein 
any  such  suit  is  pending,  or  a  copy  of  the  copy  so  filed,  duly 
certified  by  the  clerk  or  prothonotary  of  the  proper  court, 
shall  be  taken  and  held  to  be  prima  facie  correct,  and  shall 
be  admissible  in  evidence,  without  the  necessity  of  calling 
as  a  witness  the  stenographer  who  made  the  original  steno- 
graphic report  to  prove  the  same.  The  compensation  for 
said  services  shall  be  such  as  may  be  agreed  upon  between 
the  official  stenographer  and  the  parties  or  their  counsel; 
and,  in  the  absence  of  agreement,  then  the  compensation 
shall  be  at  the  per  diem  rate  of  section  six,  and  the  tran- 
script rate  of  section  eight,  of  this  act,  together  with  all 
traveling  and  hotel  expenses  of  the  official  stenographer 

225 
15 


LOWER  COURT  RECORD. 


§  161  Bill  of  Exceptions  [Chap.  9, 

necessarily  incurred  in  pursuance  of  such  employment  in 
such  proceeding,  to  be  paid  by  the  unsuccessful  party  as 
costs  in  the  cause,  or  as  the  court  may  direct.  Act  May  I, 
1907,  §9,  P.  L-  135,  5  Purd.  6052,  pi.  13. 

§  161  —  Exceptions,  Bill  of — Sealing.  When  one  that  is 
impleaded  before  any  of  the  justices  doth  allege  an  excep- 
tion praying  that  the  justices  will  allow  it,  which  if  they  will 
not  allow,  if  he  that  alleged  the  exception  do  write  the 
same  exception,  and  require  that  the  justices  will  put  their 
seals  for  a  witness,  the  justices  shall  do  so ;  and  if  one  will 
not,  another  of  the  company  shall.  And  if  the  king,  upon 
complaint  made  of  the  justices,  cause  the  record  to  come 
before  him,  and  the  same  exception  be  not  found  in  the 
roll,  and  the  plaintiff  show  the  exception  written,  with 
the  seal  of  the  justice  put  to,  the  justice  shall  be  com- 
manded that  he  appear  at  a  certain  day,  either  to  confess  or 
deny  his  seal.  And  if  the  justice  cannot  deny  his  seal,  they 
shall  proceed  to  judgment  according  to  the  same  excep- 
tion, as  it  ought  to  be  allowed  or  disallowed.  Statute  of 
Westminster  2,  13  Edward  I,  Chapter  31,  Rob.  Dig.  92. 

Allowance  by  Trial  Judge  Unnecessary.  Under  Act  May  11,  1911, 
§162,  below,  allowance  and  sealing  of  a  bill  of  exceptions  by  the  trial 
judge  are  unnecessary.  The  following  notes,  in  so  far  as  they  relate 
to  the  practice  under  the  old  act,  may  be  considered  as  modified  to  the 
extent  of  the  application  of  the  new  act : 

(1)  Scope  and  Effect — Exceptions  Necessary,  (a)  "A  bill  of  ex- 
ceptions under  it  [the  Statute  of  Westminster]  has  been  described  as 
founded  on  some  objection  in  point  of  law  to  the  opinion  and  direc- 
tion of  the  court,  either  as  to  the  competency  of  witnesses,  the  ad- 
missibility  of  evidence  or  the  legal  effect  of  it,  or  some  matter  of  law 
arising  upon  facts  not  denied,  in  which  either  party  is  overruled  by 
the  court":  Woodward,  C.  J.,  in  Wheeler  v.  Winn,  53  Pa.  122,  1866; 
(b)  "the  office  of  the  bill  of  exceptions  is  to  bring  upon  the  record 
that  which  otherwise  would  not  appear";  Heydrick,  J.,  in  Janney  v. 

226 


BILL  OF  EXCEPTIONS. 


§§  146-162]  Scope  and  Effect  §  161  (1)  (c) 

Howard,  150  Pa.  339,  1892;  (c)  "but  the  impression  seems  to  have 
lodged  in  the  minds  of  some  practitioners,  and  even  of  some  judges, 
that  bills  of  exception  are  no  longer  necessary.  There  could  not  be  a 
more  serious  misconception.  A  trial  by  jury  takes  place  in  pais,  and 
no  part  of  it  goes  on  the  record  except  the  calling  of  the  jury  and  their 
verdict,  (or  non-suit  or  other  equivalent  of  the  action  of  a  jury)  unless 
put  there  in  accordance  with  express  statutory  provision.  The  estab- 
lished mode  of  doing  this,  for  six  hundred  years,  has  been  by  bill  of 
exception,  and  it  is  still  as  necessary,  and  as  sufficient  for  the  pur- 
pose, as  it  was  when  enacted  by  the  Statute  of  Westminster.  No  bet- 
ter way  has  yet  been  invented,  and  as  to  matters  of  evidence,  of  wit- 
nesses, etc.,  there  is  no  other  way.  .  .  .  The  recent  legislation  in 
regard  to  stenographers  has  merely  changed  the  mode  of  making  up 
the  bill  of  exceptions,  while  leaving  its  substance  untouched ' ' :  Mitch- 
ell, J.,  in  Connell  v.  O'Neil,  154  Pa.  582,  1893.  (d)  "The  several 
courts  are  now  authorized  to  appoint  stenographic  reporters.  The 
appointment  is  the  act  of  the  court  and  should  be  made  a  matter  of 
record.  The  stenographer  should  be  sworn,  and  that  fact,  or,  better,  a 
copy  of  his  oath  of  office,  should  appear  among  the  records  of  the 
court.  When  so  appointed  and  qualified  he  becomes  an  officer  of  the 
court  appointing  him.  His  duty  is  to  record  fully  and  accurately  all 
that  transpires  upon  the  trial  of  causes,  all  the  oral  testimony  given, 
and  all  the  instructions  given  by  the  trial  judge  to  the  jury.  When  an 
offer  is  made  to  prove  a  fact  or  to  use  a  person  as  a  witness,  the  offer 
should  be  entered  at  length  on  the  stenographer's  notes.  If  an  ob- 
jection is  made  to  the  admission  of  the  evidence,  or  the  person,  this 
should  also  be  put  on  the  notes.  When  the  court  rules  upon  the  offer, 
the  ruling  should  be  fully  and  correctly  set  down.  If  an  exception 
is  taken  to  the  ruling,  this  should  be  stated.  .  .  .  When  the  sten- 
ographer's notes  are  completed  in  this  manner  they  present  a  faithful 
transcript  of  all  that  occurred  on  the  trial,  and  they  show  in 
their  proper  connection  all  that  formerly  went  to  make  up  a  bill  of 
exceptions.  They  take  the  place  of  the  minutes  of  the  trial  formerly 
kept  by  the  judge  or  under  his  direction,  and  the  bills  of  exception 
formerly  written  out  on  the  trial.  These  notes,  however,  do  not  be- 
come a  part  of  the  record  because  the  stenographer  certifies  to  their 
accuracy,  but  they  are  made  part  of  the  record  by  order  of  the  court 
that  they  be  written  out  and  filed.  When  so  filed  they  place  upon  the 
record  a  complete  bill  of  exceptions  upon  every  question  on  which  an 

227 


LOWER  COURT  RECORD. 


§  161  (1)  (d)-(3)  (d)    Bill  of  Exceptions— Scope,  etc.  [Chap.  9, 

exception  was  in  fact  taken.  Nothing  could  be  simpler  in  practice. 
Nothing  could  be  fairer  to  the  judge  or  to  the  parties  litigant.  The 
entire  trial  is  literally  photographed  upon  the  record.  Under  such 
circumstances  it  would  be  a  waste  of  time  and  of  legal  formalities 
to  settle  a  bill  of  exceptions  under  the  old  practice.  The  bill  is  al- 
ready settled  and  on  the  record  when  the  stenographer's  notes  are  filed 
under  the  direction  of  the  court,  and  they  may  be  copied  therefrom 
and  printed  without  further  ceremony  by  an  appellant":  Williams, 
J.,  in  Rosenthal  v.  Ehrlicher,  154  Pa.  396,  1893.  (e)  It  is  a  general 
rule  that  where  record  does  not  show  exception  taken  to  admission  or 
rejection  of  evidence  or  to  charge  of  the  court,  error  cannot  be  assigned 
thereto;  see  note  (3),  this  section,  below,  and  the  cross  references; 
(f)  and  therefore  a  point  not  raised  in  the  court  below  cannot  be 
considered  for  the  first  time  on  the  appeal:  see  §228,  note  (15) ;  (g) 
bill  of  exceptions  lies  only  in  court  of  record:  McKeon  v.  Bang,  9 
Pa.  213,  1848;  (h)  and  court  is  not  required  to  grant  exceptions  and 
note  them  on  record  unless  requested  to  do  so;  McGinnis  v.  Ins.  Co., 
38  Pa.  Super.  390,  1909;  (i)  merely  noting  objection  is  not  sufficient; 
exception  must  be  taken  and  allowed:  Yeager  v.  Fuss,  9  W.  N.  C. 
557,  1881;  Thomas  v.  Johnson,  175  Pa.  458,  1896;  Galbraith  v.  Phila. 
Co.,  2  Pa.  Super.  359,  1896 ;  Com.  v.  Dorman,  22  Pa,  Super.  20,  1903 ; 
but  see  (B),  below,  next  section;  (j)  party  will  be  limited  to  specific 
objections  made  at  trial:  see  §187,  note  (4)  (b) ;  (k)  but  general  ex- 
ception is  sufficient  unless  party  is  called  upon  to  state  specific 
grounds:  see  §187,  note  (4)  (c). 

(2)  Criminal  Cases.     The  Statute  of  "Westminster  was  extended 
to  criminal  cases  by  Act  May  19,  1874  (§151,  above) :  Haines  v.  Com. 
99  Pa.  410,  1882. 

(3)  When  Exceptions  are  Required.    In  general,  exceptions  must 
be  taken  in  all  cases  where  matters  excepted  to  would  not  otherwise 
be  part  of  the  record.    See  §146,  notes  (1)  and  (2),  for  cases  determin- 
ing what  is  part  of  record.     For  example,  exception  must  be  taken 
in  the  following  cases:  (a)  to  admission  or  rejection  of  evidence;  see 
note  (1),  this  section;  §151;  §228,  notes  (10)  and  (11);  (b)  to  charge 
of  court :  see  §147,  note  (4) ;  §148,  note  (2) ;  (c)  where  no  exceptions 
are  taken,  facts  stated  in  charge  are  assumed  to  be  correct:  MeNair 
v.  McLennan,  24  Pa.  384,  1855;  see  as  to  the  presumption  of  regular- 
ity, §228,  note   (17) ;   (d)   exception  must  be  taken  to  judgment  of 
court  below  on  point  reserved:  see  §88,  note  (1);   (e)  to  refusal  to 

228 


BILL  OF  EXCEPTIONS. 


§§  146-162]  Required   When  §  161  (3)  (f)-(4)  (e) 

take  off  non-suit :  see  §82,  note  (2) ;  (f )  to  findings  or  decree  in  bill  in 
equity:  see  §150,  note  (2);  (g)  to  refusal  of  binding  instructions: 
Levy  v.  Singer  Co.,  32  Pa.  Super.  117,  1906;  (h)  to  refusal  to  grant 
new  trial:  Com.  v.  Spencer,  6  Pa.  Super.  256,  1898;  Com.  v.  Duff,  7 
Pa.  Super.  415,  1898;  see  §228,  note  (9);  (i)  to  refusal  to  grant 
change  of  venue:  Sipe  v.  R.  R.,  222  Pa.  400,  1909;  (j)  to  refusal  to 
allow  amended  statement:  Com.  v.  Magee,  33  Pa.  Super.  257,  1907; 
(k)  under  Act  of  April  18,  1874,  P.  L.  64,  2  Purd.  1436.  pi.  11,  where 
appeal  is  taken  by  plaintiff  from  decree  discharging  rule  for  judg- 
ment for  want  of  sufficient  affidavit  of  defense :  see  §50,  note  (2) ;  (1) 
to  secure  review  of  law  or  evidence  in  removal  order  under  Act  March 
16,  1868:  see  §85,  note  (2) ;  (m)  to  action  of  court  on  interlocutory 
proceedings  in  attachment  under  Fraudulent  Debtor's  Act  March  17, 
1869,  P.  L.  8, 1  Purd.  263,  pi.  101 ;  Potter  v.  Graham,  8  Pa.  Super.  199, 
1898 ;  (n)  to  refusal  to  grant  leave  to  file  additional  exceptions  contain- 
ing new  matter:  Lewis  v.  R.  R.,  220  Pa.  317,  1908;  (o)  to  remarks 
of  counsel  in  argument  to  jury:  Spears  v.  Knarr,  4  Pa.  Super.  80, 
1897;  Com.  v.  Dorman,  22  Pa.  Super.  20,  1903;  see  also  cases  §146, 
note  (2)  (d) ;  (p)  to  remarks  by  judge  to  counsel:  Harris  v.  R.  R.,  156 
Pa.  252,  1893;  (q)  to  sending  out  statement  with  jury:  Welliver  v. 
Canal  Co.,  23  Pa.  Super.  79,  1903;  (r)  to  answer  of  court  to  question 
of  juror:  Cutter  v.  Pierson,  26  Pa.  Super.  10,  1904;  (s)  to  occurrence 
during  deliberations  of  jury:  Earon  v.  Mackey,  106  Pa.  452,  1884;  (t) 
to  time  and  circumstances  of  rendering  verdict:  Kinney  v.  Burnhorn, 
23  Pa.  Super.  583,  1903;  (n)  to  findings  of  fact  or  law  in  case  tried 
before  court  without  jury:  see  §98,  (B)  and  notes  (1)  and  (2). 

(4)  When  Exceptions  Do  Not  Lie.  Exceptions  do  not  lie  in  the 
following  cases :  (a)  In  proceedings  by  landlord  to  recover  possession 
under  Act  April  3,  1830,  P.  L.  187,  2  Purd.  2199,  pi.  38;  McKeon  v. 
King,  9  Pa.  213,  1848;  (b)  to  refusal  to  permit  removal  of  action 
brought  against  alien  into  United  States  Circuit  Court :  Carey  v.  Cob- 
bet,  2  Y.  277,  1798;  (c)  to  opinion  of  court  in  receiving  or  rejecting 
evidence  on  motion  for  summary  relief:  Shortz  v.  Quigley,  1  Bin.  222, 
1807;  Brown  v.  Ridgway,  10  Pa.  42,  1848;  Murphy  v.  Flood,  2  Grant 
411,  1853;  Bellah  v.  Poole,  202  Pa.  71,  1902;  (d)  to  opinion  of  court 
expressed  in  charge  on  facts  not  warranted  by  evidence,  when  remedy 
is  motion  for  new  trial:  Burd  v.  Dansdale,  2  Bin.  80,  1809;  (e)  to 
entry  or  refusal  of  court  to  enter  compulsory  non-suit :  Girard  v.  Get- 
tig,  2  Bin.  234,  1810;  such  action  not  being  reviewable:  see  §82,  note 

229 


LOWER  COURT  RECORD. 


§161  (4)(f)-(5)(b)      Exceptions— When  do  not  Lie  [Chap.  9, 

(1),  above;  (f)  to  expression  of  opinion  by  court  as  to  effect  of  pend- 
ing motion  for  non-suit  if  not  withdrawn;  North  Penna.  R.  R.  v. 
Kirk,  90  Pa.  15,  1879;  (g)  to  refusal  of  court  to  strike  out  evidence 
received  without  objection;  proper  course  is  to  ask  court  to  instruct 
jury  to  disregard  it :  Ashton  v.  Sproule,  35  Pa.  492,  1860 ;  Oswald  v. 
Kennedy,  48  Pa.  9,  1864;  U.  S.  Telegraph  Co.  v.  Wenger,  55  Pa.  262, 
1867;  Yeager  v.  Weaver,  64  Pa.  425,  1870;  Montgomery  v.  Cunning- 
ham, 104  Pa.  340,  1883;  Gilmore  v.  R.  R.,  104  Pa.  275,  1884;  Lowrey 
v.  Robinson,  141  Pa.  189,  1891;  McDyer  v.  Ry.,  227  Pa.  641,  1910;  (h) 
to  opinion  filed  at  request  of  commonwealth  in  quashing  indictment: 
Com.  v.  Church,  1  Pa.  105,  1845;  (i)  to  opinion  of  court  on  evidence 
returned  in  proceedings  under  poor  laws :  Mauch  Chunk  v.  Nescopeck, 
21  Pa.  46,  1853;  Westmoreland  Co.  v.  Conemaugh  Twp.,  34  Pa.  231, 
1859;  Bradford  Twp.  v.  Goshen  Twp.,  57  Pa.  495,  1868;  Plunkett's 
Creek  Twp.  v.  Fairfield  Twp.,  58  Pa.  209,  1868;  Barnes  v.  Com.,  11 
W.  N.  C.  575,  S.  C.  2  Penny.  506,  1882;  (j)  to  evidence  given  before 
viewers  to  assess  damages  for  construction  of  railroad :  Ohio  &c.  R.  R. 
v.  Bradford,  19  Pa.  363,  1852;  (k)  to  evidence  to  determine  whether 
defendant  asking  stay  of  execution  was  freeholder:  Robinson  v.  Nar- 
ber,  65  Pa.,  85,  1870;  (1)  to  evidence  on  hearing  of  rule  to  show  cause 
why  judgment  should  not  be  marked  satisfied:  Calhoun  v.  Logan,  22 
Pa.  46,  1853;  (m)  to  evidence  on  motion  relative  to  costs:  Rogers  v. 
Ratcliffe,  23  Pa.  184,  1854;  (n)  nor  on  examination  of  witness  on  voir 
dire  when  evidence  in  chief  was  properly  admitted  or  excluded :  Brown 
v.  Downing,  4  S.  &  R.  494,  1818;  Quinn  v.  Crowell,  4  Whar.  334,  1839; 
(o)  to  inquiry  of  damage  executed  at  bar  of  court:  Bell  v.  Bell,  9 
Watts  47,  1839;  (p)  to  evidence  as  to  allotment  in  partition:  Hawk  v. 
Jones,  24  Pa.  127,  1854;  (q)  in  proceedings  incorporating  borough: 
Quakertown  Boro.,  3  Grant  203, 1855;  (r)  to  decision  in  contested  elec- 
tion case:  Election  Cases,  65  Pa.  20,  1870;  Mann  v.  Cassidy,  1  Brews. 
11,  1856 ;  Lyon  v.  Dunn,  196  Pa.  90,  1900. 

(5)  Contents  of  Bill.  Bill  of  exception  must  contain:  (a)  Such 
facts  as  are  necessary  to  comprehend  points  ruled  and  instructions 
given:  Forsyth  v.  Matthews,  14  Pa.  100,  1850;  Sorg  v.  Congregation, 
63  Pa.  156,  1870;  (b)  fact  that  objection  was  noted  at  time  of  trial: 
Rearich  v.  Swinehart,  11  Pa.  233,  1849;  Miller  v.  Stem,  12  Pa.  383, 
1849;  Yeager  v.  Fuss,  9  W.  N.  C.  557,  1881;  Rosenthal  v.  Ehrlicher, 
154  Pa.  396,  1893;  Green  v.  Thompson,  172  Pa.  609,  1896;  see  §147,  n. 
(4) ;  §228,  n  (10)  and  (11) ;  but  see  paper  books  and  opinion  in  Ed- 

230 


BILL  OF  EXCEPTIONS. 


§§146-162]  Contents  of  §  161  (5)  (c)-(q) 

wards  v.  Gimbel,  187  Pa.  78,  1898,  where  Supreme  Court  reviewed 
case  though  it  appeared  no  exceptions  had  been  taken  at  trial;  (c)  all 
evidence,  where  court  instructs  jury  that  it  is  insufficient  to  warrant 
particular  finding:  Oakland  Ry.  v.  Thomas,  1  Penny.  435,  1881;  (d) 
all  evidence  given  when  rule  to  take  off  non-suit  is  discharged :  Baker 
v.  Lewis,  33  Pa.  301, 1858;  (e)  evidence  necessary  to  understand  opin- 
ion of  court,  even  when  opinion  contains  statement  of  evidence :  Down- 
ing v.  Baldwin,  1  S.  &  R.  298,  1815;  Bassler  v.  Niesly,  1  S.  &  R.  431, 
1815;  Munderbach  v.  Lutz,  14  S.  &  R.  125,  1826;  Hamilton  v.  Moore, 
4  W.  &  S.  570,  1817;  (f)  all  evidence  contained  in  rejected  offer:  Wil- 
liams v.  Williams,  34  Pa.  312, 1859;  Lothrop  v.  Wightman,  41  Pa.  297, 
1862;  Wilvert  v.  Sunbury,  81  Vz  Pa.  57, 1871;  Kiel  v.  Com.,  1  W.  N.  C. 
347,  1875;  (g)  fact  that  matter  objected  to  on  cross  examination  was 
material:  Phelin  v.  Kenderdine,  20  Pa.  354,  1853;  (h)  fact  that  ob- 
jectionable testimony  was  offered  as  rebutting  declarations  of  same 
witness,  under  examination  by  opposite  party:  Eakman  v.  Sheaffer, 
48  Pa.  176,  1864;  (i)  fact  that  evidence  offered  was  material  and  perr 
tinent:  Hocker  v.  Jamison,  2  W.  &  S.  438,  1841;  Shortz  v.  Unangst, 
3  W.  &  S.  45,  1841;  (j)  fact  that  evidence  had  been  withdrawn:  Brin- 
dle  v.  Mcllvaine,  9  S.  &  R.  74,  1822;  (k)  in  what  manner  evidence 
apparently  irrelevant  was  relevant:  Davenport  v.  Wright,  51  Pa.  292, 
1866;  Freeland  v.  R.  R.,  66  Pa.  91,  1870;  Clymer  v.  Thompson,  1  W. 
N.  C.  261,  1875;  (1)  unless  no  offer  was  demanded:  Richardson  v. 
Stewart,  4  Bin.  198,  1811 ;  (m)  evidence  objected  to  must  be  shown  or 
exception  thereto  will  be  considered  waived:  Snowden  v.  Warder,  3 
Rawle  101,  1831;  see  also  (p),  below;  (n)  evidence  to  which  statute 
of  limitations  is  applicable:  Hamilton  v.  Moore,  4  W.  &  S.  570,  1817; 
(o)  evidence  to  show  want  of  title  on  rejection  of  offer  to  show  no 
right  to  lease:  Howard  v.  Murphy,  23  Pa.  173,  1854;  (p)  writings, 
such  as  documents,  records,  etc.,  to  which  objection  is  taken,  or  copy 
thereof  attached  to  bill  with  a  prout:  Gratz  v.  Gratz.,  4  Rawle  411, 
1834;  Stafford  v.  Stafford,  27  Pa.  144,  1856;  Lothrup  v.  Wightman, 
941  Pa.  297,  1862;  Wilson  v.  Horner,  59  Pa.  155,  1869;  Edwards  v. 
Tracy,  62  Pa.  374,  1870;  Aiken  v.  Stewart,  63  Pa.  30,  1870;  Wilvert 
v.  Sunbury,  81%  Pa.  57,  1871;  Kille  v.  Ege,  79  Pa.  15,  1875;  Kiel  v. 
Com.,  1  W.  N.  C.  347,  1875;  (q)  objection  to  deposition  that  it  was 
not  attached  to  any  commission  or  interrogatories  or  that  there  was 
no  proper  certificate:  Hill  v.  Hill,  42  Pa.  198,  1862;  (r)  part  of  book 
entry  alleged  to  be  inadmissible  should  be  specially  objected  to  and 

231 


LOWER  COURT  RECORD. 


§161  (5)  (r)-(6)     Exceptions— Contents  of— Time  for  Taking      [Chap.  9, 

brought  to  attention  of  lower  court :  Baumgardner  v.  Burnham,  10  W. 
N.  C.  445,  1881 ;  (s)  charge  of  court  and  answers  to  points,  unless  they 
have  been  duly  filed  of  record  as  provided  by  statute:  see  §§147-149; 
(t)  all  of  charge  relating  to  points  excepted  to  and  necessary  to  ex- 
plain specific  answers  thereto;  Yardley  v.  Cuthbertson,  14  W.  N.  C. 
29,  1883;  (u)  facts  from  which  question  of  law  reserved  arises:  Mil- 
ler v.  Hershey,  59  Pa.  64,  1868;  Central  Bank  v.  Early,  113  Pa.  477, 
1886;  (v)  question  of  law  reserved:  Barwell  v.  Wirth,  61  Pa.  133, 
1869;  (w)  fact  that  no  notice  was  given  of  special  matter  when  ab- 
sence of  notice  is  ground  for  objection :  Hobson  v.  Croft,  9  Pa.  363, 
1849;  Eearich  v.  Swinehart,  11  Pa.  233,  1849;  Miller  v.  Stem,  12  Pa. 
383,  1849;  (x)  rules  governing  bills  of  exceptions  in  civil  cases  apply 
also  to  criminal  cases :  Hopkins  v.  Com.,  50  Pa.  9,  1865 ;  Grant  v.  Com., 
71  Pa.  495,  1872.  For  form  of  bill  of  exceptions,  see  Appendix,  §31. 

(6)  Time  for  Taking  Exception,  (a)  Exception  to  evidence  must 
be  taken  at  time  of  its  admission  or  rejection  by  the  court :  Morris  v. 
Buckley,  8  S.  &  R.  211,  1822;  Robinson  v.  Snyder,  25  Pa.  203,  1855; 
Duvall  v.  Darby,  38  Pa.  56,  1861;  Johnson  v.  Com.,  115  Pa.  369,  1887; 
Com.  v.  Spencer,  6  Pa.  Super.  256,  1898;  Com.  v.  Wilson,  186  Pa.  1, 
1898;  Com.  v.  Van  Horn,  188  Pa.  143, 1898;  Guillon  v.  Redfield,  205  Pa. 
293,  1903;  (b)  exception  to  charge  may  be  taken  at  any  time  before 
verdict  given  in  open  court :  Jones  v.  Ins.  Co.,  1  Bin.  38,  1802 ;  Norris 
v.  Ins.  Co.,  3  Yeates  84, 1800;  Bratton  v.  Mitchell,  3  Pa.  44,  1846;  Mc- 
Adams  v.  Stilwell,  13  Pa.  90, 1850 ;  see  also  §147,  note  (4) ;  but  present 
practice  requires  counsel  to  call  attention  to  errors  in  charge  before 
jury  retires,  so  that  mistake  can  be  corrected:  see  §228,  note  (20)  (r) ; 
(c)  but  exception  to  charge  may  be  allowed  nunc  pro  tune  to  prevent 
injustice:  Hill  v.  Egan,  160  Pa.  119,  1894;  (d)  or  where  parties  agree 
to  such  filing:  Pool  v.  White,  175  Pa.  459,  1896;  (e)  exception  to  mo- 
tion for  jury  to  view  premises  in  murder  trial  cannot  avail  even  if 
allowed,  if  taken  after  trial:  Com.  v.  Van  Horn,  188  Pa.  143,  1898; 
(f)  exception  to  refusal  to  strike  off  non-suit  need  not  be  taken  at 
time  of  refusal,  but  may  be  allowed  after  appeal  has  been  taken: 
Eisenberg  v.  Fraim,  15  Dist.  445,  1906 ;  (g)  exception  to  order  remov- 
ing a  pauper  should  be  taken  within  reasonable  time  after  order  and 
before  appeal:  Mifflin  Twp.  Dist.  v.  District,  37  Pa.  Super.  611,  1908; 
(h)  these  rules  apply  to  criminal  cases:  Grant  v.  Com.,  71  Pa.  495, 
1872;  Haines  v.  Com.,  99  Pa.  410,  1882;  Com.  v.  Ribert,  144  Pa.  413, 
1891;  see  §151  and  notes. 

2.-12 


BILL  OF  EXCEPTIONS. 


§§146-162]  Sealing— Remedy— Death  of  Judge  §161  (7)-(9) 

(7)  Time  for  Settling  and  Sealing  Exceptions,    (a)  Bill  of  excep- 
tion, strictly  speaking,  should  be  presented  and  sealed  during  trial, 
but  court  is  not  bound  to  suspend  trial  until  after  bill  is  sealed ;  it  was 
required  only  that  exception  be  reduced  to  writing  and  noted  at  the 
time  of  trial:  Morris  v.  Buckley,  8  S.  &  R.  211, 1822;  Stewart  v.  Bank, 
11  S.  &  R.  267,  1824;   (b)   and  presented  in  form  for  seal  of  judge 
within  a  reasonable  time  unless  time  was  fixed  by  rule  of  court: 
Meese  v.  Levis,  13  Pa.  384,  1850;  (c)  this  rule  is  intended  for  benefit 
of  the  judge  as  well  as  parties,  and  he  is  not  bound  to  seal  exception 
unless  bill  is  presented  within  that  time:  Haines  v.  Com.,  99  Pa.  410, 
1882;  Haines  v.  Com.,  100  Pa.  317,  1882;  (d)  rule  of  court  requiring 
settlement  within  certain  time  is  for  benefit  of  appellee  and  cannot  be 
disregarded  without  his  consent :  Kirkpatrick  v.  Lex,  49  Pa.  122,  1865. 

(8)  Remedy  for  Refusal  to  Seal,    (a)  If  trial  judge  refuse  to  seal 
bill  of  exceptions,  mandamus  will  not  lie,  but  remedy  is  by  petition  to 
the  Supreme  Court  for  a  special  writ  [for  forms,  see  Appendix,  §§32 
and  33]  setting  forth  the  circumstances  and  commanding  the  judge  to 
affix  his  seal:   Drexel  v.   Man,   6  W.   &   S.  386,  1843;   Conrow  v. 
Schloss,  55  Pa.  28,  1867;  Haines  v.  Com.,  99  Pa.  410,  1882;  Reichen- 
bach  v.  Ruddach,  121  Pa.  18, 1888;  Com.  v.  Arnold,  161  Pa.  320,  1894; 
(b)  but  he  cannot  be  required  to  seal  a  second  or  separate  bill:  Com. 
v.  Arnold,  161  Pa.  320,  1894;  (c)  demurrer  will  not  be  allowed,  but 
petitioner  may  file  exceptions  to  return  of  writ;  and  if  judge  in  his 
return    confess   the   facts    and   seal   the   bill,    exceptions   become    a 
part  of  record ;  if  he  deny  them,  petitioner  has  his  action  for  false  re- 
turn: Conrow  v.  Schloss,  55  Pa.  28,  1867;   (d)  return  by  trial  judge 
is  final :  Haines  v.  Com.,  99  Pa.  410,  1882 ;  (e)  but  return  should  state 
in  what  respect  exceptions  were  deficient:  Reichenbach  v.  Ruddach, 
121  Pa.  18,  1888.    For  decree  instead  of  writ :  §49,  Appendix. 

(9)  Death  or  Expiration  of  Term  of  Judge,     (a)  If  judge's  term 
expires  or  he  resigns  or  is  removed  or  dies  before  sealing  of  bill,  proper 
method  of  obtaining  bill  is  by  eertiorari  from  Supreme  Court:  Gal- 
braith  v.  Green,  13  S.  &  R.  85,  1825;  (b)  in  such  case  his  successor 
may  seal  the  bill.     The  practice  is  to  present  petition  with  bill  at- 
tached accompanied  by  statement  of  reason  for  delay  and  affidavit 
that  exceptions  were  taken  at  trial  according  to  usual  practice:  Mc- 
Candless  v.  McWha,  20  Pa.  183,  1853 ;  Warner  v.  R.  R.,  39  Pa.  Super. 
282,  1909 ;  (c)  and  notes  of  deceased  judge  may  be  filed :  Burk  v.  Mc- 
Mullen,  4  Pa.  317,  1846;   (d)  but  appeal  will  be  quashed  where  ap- 

233 


LOWER  COURT  RECORD. 


§  162        Exceptions — Stenographer — Court  Decision     [Chap.  9,  §§  146-162] 

pellant  had  several  months  prior  to  death  of  trial  judge  within  which 
to  procure  his  certification  or  transcript  of  charge,  but  failed  to  do  so : 
Warner  v.  R.  R.,  39  Pa.  Super.  282,  1909;  (e)  if  trial  judge  is  unable 
from  illness  to  allow  bill  of  exceptions,  another  judge  of  same  court 
may  do  so :  Mintzer  v.  Hogg,  192  Pa.  137, 1899. 

§162  —  (A)  Allowance  by  Trial  Judge  Unnecessary — 
Evidence — Charge — Answers  to  Points — Time  and  Man- 
ner of  Taking.  From  and  after  the  passage  of  this  act,  it 
shall  not  be  necessary  on  the  trial  of  any  case,  civil  or  crim- 
inal, in  any  court  of  record  in  this  commonwealth,  for  the 
trial  judge  to  allow  an  exception  to  any  ruling  of  his ;  but, 
upon  request  by  counsel,  made  immediately  succeeding 
such  ruling,  the  official  stenographer  shall  note  such  excep- 
tion, and  it  shall  thereafter  have  all  the  effect  of  an  excep- 
tion duly  written  out,  signed,  and  sealed  by  the  trial  judge. 
Act  May  n,  1911,  §i,  P.  L.  279. 

Exceptions  may  be  taken,  without  allowance  by  the  trial 
judge,  to  any  part  or  all  of  the  charge,  or  to  the  answers 
to  points,  for  any  reason  that  may  be  alleged  regarding  the 
same  in  the  hearing  of  the  court,  before  the  jury  retires  to 
consider  its  verdict,  or,  thereafter,  by  leave  of  the  court; 
and  they  shall  be  thereupon  noted  by  the  official  stenogra- 
pher, and  thereafter  have  all  the  effect  of  exceptions  duly 
written  out,  signed  and  sealed  by  the  trial  judge,  at  the 
time  of  the  trial.  Act  May  n,  1911,  §2,  P.  L.  279. 

—  (B)  Exception  to  Decision  of  Court  Unnecessary 
Where  Decision  Appears  in  Proceedings.  Whensoever 
the  decision  of  a  court  of  record  shall  appear  in  the  pro- 
ceedings of  a  case,  it  shall  not  be  necessary,  for  the  purpose 
of  a  review  of  that  decision,  to  take  any  exception  thereto ; 
but  the  case  shall  be  heard  by  the  appellate  court  with  the 
same  effect  as  if  an  exception  had  been  duly  written  out, 
signed,  and  sealed  by  the  court.  Act  May  n,  1911,  §6,  P. 
L.  279. 

234 


BAIL  IN  ERROR. 


Chap.  10,  §§  163-181]     Where   and   how    Entered  §  163 


CHAPTER  X. 

BAIL  IN  ERROR SUPERSEDEAS ALLOCATUR. 

§163.    Bail— Where  and  How  Entered— To  be  Fixed  by  Prothonotary. 

§164.        Approval  by  Court  Below. 

§165.        On  Appeal  from  Superior  Court — Additional  Bail. 

§166.         Surety — Who  May  not  Become. 

§167.    Supersedeas — Execution    Issued — Appeal   Must   be   Perfected 
Within  Three  Weeks. 

§168.        Not  Effected  Without  Security  Except  in  Certain  Cases| 

§169.        Decree  Directing  Payment  of  Money — Release  of  Lien  of 
Judgment. 

§170.        Decree  Directing  Assignment  or  Delivery  of  Personal  Prop- 
erty. 

§171.        Sale  of  Perishable  Property. 

§172.        Decree  Directing  Execution  of  Conveyance. 

§173.        Decree  Granting  Injunction. 

§174.        Decree  in  Actions  Involving  Title  or  Possession  of  Realty. 

§175.        Decree  Dismissing  or  Removing  Persons  Acting  in  Fiduciary 
Capacity. 

§176.        Decree  for  Costs. 

§177.        Decree  Within  More  than  One  Class. 

§178.        Distribution  of  Account,  etc.,  or  Award  of  Damages. 

§179.        Special  Allocatur — Required  in  Certain  Cases. 

§180.  Procedure  to  Obtain. 

Supreme  Court. 

§181.  Superior  Court. 

§163.  Bail— Where  and  How  Entered — To  be  Fixed 
by  Prothonotary.  Bail  upon  any  appeal  shall  be  entered 
in  the  court  from  which  the  appeal  is  taken,  shall  be  in  the 
name  of  the  commonwealth  to  the  use  of  all  parties  inter- 

235 


BAIL  IN  ERROR. 


§  163,  (l)-(3)  (e)  Sureties  [Chap.  10, 

ested,  and  shall  be  sued  upon  in  like  manner  as  official 
bonds.  Except  as  herein  otherwise  provided  and  subject 
to  revision  by  the  court  from  which  the  appeal  is  taken, 
the  prothonotary  or  clerk  thereof  shall  fix  the  amount  of 
bail  and  approve  or  reject  the  security  offered.  Act  May 
I9>  1897,  §5,  P.  L.  67,  2  Purd.  1447,  pi.  51. 

(1)  Entry  of  Bail — Sureties,     (a)  Recognizance  of  bail  is  entered 
into  before  the  prothonotary  or  clerk  of  the  lower  court.    Although  it 
should  be  duly  certified  and  transmitted  as  part  of  the  record  to  the 
Supreme  Court,  an  omission  to  mark  it  filed  or  to  send  it  up  with  the 
record  does  not  destroy  its  validity:  Beck  v.  Courtney,  13  W.N.  C.  302, 
1883;  (b)  mere  fact  that  bond  was  not  entered  until  after  six  months 
is  not  ground  for  quashing  where  certiorari  has  been  duly  filed  within 
six  months  and  no  execution  was  issued  or  distribution  ordered:  Han- 
hauser  v.  R.  R.,  222  Pa.  240,  1908;  see  also  §167,  note  (1) ;  (c)  defec- 
tive recognizance  may  derive  validity  from  express  or  implied  consent 
of  parties  to  treat  it  as  such :  Allen  v.  Kellam,  94  Pa.  253,  1880 ;  (d) 
but  this  does  not  extend  to  defect  in  substance:  Wesley  v.  Sharpe,  19 
Pa.  Super.  600,  1902;  See  Appendix,  §§52  to  55,  for  forms. 

(2)  Appeal  Without  Bail.    For  right  to  appeal  without  entry  of 
bail,  see  §168,  below. 

(3)  Liability  of  Sureties,    (a)  Sureties  are  liable  on  a  bail-bond  in 
a  cause  in  which  there  was  no  formal  judgment,  but  merely  a  rule  for 
judgment  for  want  of  a  sufficient  affidavit  of  defense  marked  absolute : 
Mechling  v.  Bank,  3  Walk.  466,  1876;  (b)  sureties  cannot  escape  lia- 
bility by  showing  that  appeal  was  not  taken  from  judgment,  but  to 
discretion  of  court  in  refusing  to  set  aside  execution:  Beck  v.  Court- 
ney, 13  W.  N.  C.  302,  1883;  (c)  ultimate  liability  depends  on  result  of 
the  original  suit:  Adams  v.  Mortland,  13  W.  N.  C.  221,  1882;  (d)  and 
if  judgment  is  reversed,  sureties  will  not  be  liable  on  writ  subsequently 
taken:  Carbondale,  etc.,  Bank  v.  Cowperthwaite,  1  Wilcox  273,  1888; 
(e)  sureties  are  liable  only  for  costs  accrued  on  appeal  in  case  where 
administratrix  appeals  from  order  for  attachment  for  failure  to  pay 
claim  against  the  estate,  which  is  non-prossed,  but  administratrix  is 
subsequently  found  purged  of  contempt :  Com.  v.  Luton,  12  Luz.  L. 
Reg.  Rep.  63,  1904;  (f)  sureties  are  liable  only  for  proper  costs  on  af- 
firmance of  judgment  for  defendant  under  Sheriff's  Interpleader  Act: 

236 


BAIL  IN  ERROR. 


§§  163-181]  Approval  by  Court  below  §  163  (3)  (f)-§  164 

Guyer  v.  Spotts,  85  Pa.  51,  1877;  Com.  v.  McNaught,  28  Pa.  Super. 
369, 1905 ;  (g)  but  on  appeal  in  sci.  fa.  sur  mortgage,  sureties  are  liable 
for  debt  as  well  as  costs :  Brown  v.  Lovrein,  4  W.  N.  C.  538, 1877 ;  Com. 
v.  Cummings,  26  C.  C.  140,  1902;  Moyer  v.  Dodson,  9  Del.  398,  1905; 
(h)  and  in  an  action  to  recover  purchase  money  on  agreement  of  sale 
of  real  estate,  sureties  on  appeal  bond  conditioned  for  the  payment  of 
costs  and  damages  are  liable  for  the  amount  of  the  bond,  that  being 
less  than  the  purchase  money :  Com.  v.  Harvey,  51  P.  L.  J.  (0.  S.)  380, 
1904;  (i)  where  appeal  by  defendant  is  irregular  and  plaintiff  proceeds 
with  execution  in  disregard  of  appeal,  sureties  on  bond  are  not  liable 
for  deficiency  in  execution :  Allen  v.  Kellam,  94  Pa.  253,  1880 ;  Geisel- 
man  v.  Shomo,  13  Pa.  Super.  1,  1900;  (j)  sci.  fa.  does  not  lie  on  appeal 
bond  which  does  not  comply  with  statute,  though  bond  has  been  filed : 
Lazarus  v.  Morris,  17  Dist.  804,  1907. 

(4)  Amount  of  Bail — Approval,  (a)  Bond  must  usually  be  double 
amount  of  judgment  or  decree  and  all  costs :  Smead  v.  Stuart,  194  Pa. 
578,  1900;  Com.  v.  Harvey,  51  P.  L.  J.  (0.  S.)  380,  1904;  (see  also 
§167  et  seq.) ;  (b)  when  bail  is  defective,  appeal  is  not  a  su- 
persedeas:  Magill  v.  Kauffman,  4  S.  &  R.  317;  McKeeby  v. 
Webster,  170  Pa.  624,  1895;  Hoy  v.  Ins.  Co.,  21  Montg.  77,  1905;  (c) 
prothonotary  or  clerk  must  approve  bail:  Denlenger  v.  Power  Co.,  32 
Pa.  Super.  418, 1907;  (d)  where  bond  is  marked  and  filed  by  prothono- 
tary without  objection,  appellate  court  will  not  quash  on  ground  that 
record  does  not  show  bond  was  approved  by  prothonotary:  Ripka  v. 
Ins.  Co.,  36  Pa.  Super.  517,  1908;  see  also  Titusville  Oil  Exchange,  10 
Pa.  Super.  496,  504,  1899. 


§164.  —Approval  by  Court  Below.  The  court  from 
\vhich  an  appeal  is  taken  may  make  such  orders  as  to  right 
and  justice  shall  belong  relative  to  the  security  offered  or 
entered,  either  as  to  approval  thereof,  addition  thereto  or 
substitution  therefor,  whenever  a  proper  case  shall  be 
made  to  appear  requiring  the  action  of  said  court.  Act 
May  19,  1897,  §17,  P.  L.  67,  2.  Purd.  1450,  pi.  63. 

(1)  Approval  by  Court.  The  revisory  power  of  the  court  is  limited 
to  approving  or  disapproving  the  responsibility  of  bondsmen  and  does 


237 


BAIL  IN  ERROR. 


§§  165, 166  From  Superior  Court — Who  not  to  go  Bail       [Chap.  10, 

not  extend  to  right  to  fix  amount  of  bail:  Locher's  Est.,  16  Dist.  787, 
1907.    For  forms,  see  Appendix,  §§  53  and  55. 

(2)  Concurrent  Power  of  Appellate  Court.  The  authority  of  the 
Supreme  Court  to  take,  vacate  or  amend  bail  in  error  was  concurrent 
with  the  common  pleas:  Smith  v.  Ramsay,  6  S.  &  R.  573,  1821;  Hosie 
v.  Gray,  73  Pa.  502,  1871;  Kaufman  v.  Hirsch,  9  W.  N.  C.  347,  1881; 
Warren  v.  Steer,  17  W.  N.  C.  12,  1885;  Silliman  v.  Whitmer,  173  Pa. 
401, 1896.  But  see  now  Act  1897,  §163  et  seq. 

§165.  —  On  Appeal  from  Superior  Court— Additional 
Bail.  No  additional  bail  bond  shall  be  required  on  appeals 
from  the  Superior  Court  to  the  Supreme  Court  unless, 
upon  application  of  a  party  in  interest,  it  shall  be  made  to 
appear  to  the  Supreme  Court  that  the  bail  entered  is,  from 
any  cause,  insufficient;  in  which  event  the  Supreme  Court 
may  require  additional  bail  to  be  entered  in  the  court  from 
which  the  appeal  was  first  taken,  and,  in  default  of  the 
entry  thereof  within  the  time  specified,  may  order  a  non- 
pros, or  in  case  the  order,  judgment  or  decree  of  the  court 
below  is  reversed  by  the  Superior  Court  and  final  judg- 
ment entered  for  the  appellant,  in  which  event,  in  order  to 
operate  as  a  supersedeas,  an  appeal  bond  must  be  entered 
in  the  court  from  which  the  appeal  was  first  taken  in  such 
amount,  and  with  such  conditions,  as  are  required  in  cases 
of  appeal  from  similar  orders,  judgments  or  decrees  of  such 
lower  court.  Act  May  19,  1897,  §19,  P.  L.  67,  2,  Purd. 
1450,  pi.  64. 

§166.  —  Surety — Who  May  not  Become.  No  attorney 
of  this  or  any  other  court,  sheriff's  officer,  bailiff  or  other 
person  concerned  in  the  execution  of  process,  shall  become 
bail  on  appeal  except  by  special  leave  of  the  court  pre- 
viously obtained.  Supreme  Court  Rule  6;  Superior  Court 
Rule  5. 

238 


SUPERSEDEAS. 


§§  163-181]  Execution  Issued — Appeal  Perfected  When  §  167 

§  167.  Supersedeas  —  Execution  Issued  —  Appeal  Must 
be  Perfected  Within  Three  Weeks.  Nor  shall  an  appeal 
supersede  an  execution  issued  or  distribution  ordered, 
unless  taken  and  perfected,  and  bail  entered  in  the  manner 
herein  prescribed  within  three  weeks  from  such  entry. 
Act  May  19,  1897,  §4,  P.  L.  67,  2  Purd.  1433,  pi.  3. 

(1)  Perfecting  Appeal — Time,  (a)  Under  Act  of  1895,  amended 
by  above  act,  it  was  held  that  an  appeal  was  perfected  when  the  pre- 
scribed affidavit  had  been  filed  and  bail  had  been  entered  as  required  by 
the  act :  Marks  v.  Baker,  2  Pa.  Super.  167,  1896 ;  Page  v.  McNaughton 
Co.,  2  Pa.  Super.  519,  1896;  (b)  where  appeal  is  not  perfected  within 
six  months  by  filing  with  prothonotary  of  lower  court  as  required  by 
Act  of  1897  (§132,  above)  and  notice  of  appeal  has  not  been  given  as 
required  by  rules  of  court  (§133,  above),  appeal  will  be  quashed:  Me- 
haffy  v.  Fink,  13  Pa.  Super.  534, 1900 ;  (c)  new  bail  entered  after  three 
weeks  from  judgment  will  not  supersede  execution  already  issued: 
McKeeby  v.  Webster,  170  Pa.  624,  1895;  Hoy  v.  Ins.  Co.,  21  Montg. 
77, 1905;  Hoon  v.  Miller,  33  C.  C.  7, 1906;  Schock  v.  Light  Co.,  17  Dist. 
561,  1907;  (d)  unless  execution  has  been  returned  nulla  bona:  Com.  v. 
Conway,  22  C.  C.  428,  1899;  (e)  but  appeal  in  ejectment,  taken  after 
three  weeks,  is  not  supersedeas,  even  though  writ  of  habere  facias  pos- 
sessionem  has  not  issued :  Schock  v.  Light  Co.,  17  Dist  561,  1907 ;  (f ) 
appeal  in  homicide  case  is  within  act  and  must  be  taken  within  three 
weeks  from  sentence:  Com.  v.  Hill,  185  Pa.  385,  1898;  (g)  death  war- 
rant signed  by  Governor  is  execution  issued  within  meaning  of  the  act : 
Com.  v.  Hill,  185  Pa.  385,  1898;  (h)  where  prisoner  is  sentenced  and 
enters  bond  for  appearance  and  takes  appeal  without  securing  order 
for  supersedeas,  he  cannot,  after  appeal  is  non-prossed,  object  to  sen- 
tence being  carried  into  effect  because  appeal  was  not  made  superse* 
deas  or  because  decree  directing  sentence  to  be  carried  out  was  made 
after  end  of  term:  Com.  v.  Best,  34  Pa.  Super.  219, 1907;  (i)  where  bail 
is  not  perfected  within  time  allowed  by  court  appeal  will  not  operate 
as  supersedeas:  Newhard's  Est.,  9  Dist.  764,  1900;  (j)  but  mere  fact 
that  bond  is  not  entered  within  six  months  is  not  ground  for  quashing 
where  certiorari  has  been  duly  filed  within  that  time  and  no  execution 
was  issued  or  distribution  ordered:  Hanhauser  v.  R.  R.,  222  Pa.  240, 
1908;  see  also  §136. 


239 


SUPERSEDEAS. 


§  168  When  effected  without  Bail  [Chap.  10, 

§168.  —  Not  Effected  Without  Security,  Except  in  Cer- 
tain Cases.  Appeals  may  be  taken  from  any  sentence,  or- 
der, judgment  or  decree  without  security  in  any  proceed- 
ing, where  by  law  the  same  is  or  may  be  allowed,  but  in 
such  cases  the  appeal  shall  not  operate  as  a  supersedeas, 
except  when  a  county,  township  or  municipal  corporation, 
or  any  one  suing  or  defending  in  a  representative  capacity, 
is  the  appellant,  or  when  the  appeal  is  from  a  judgment 
entered  in  favor  of  the  commonwealth  upon  an  account 
settled  by  the  auditor  general  and  state  treasurer,  and  a 
bond  with  approved  security  has  already  been  given  as  re- 
quired by  law,  or  in  any  other  case  where  a  bond  with  ap- 
proved security  has  already  been  entered  in  the  court  from 
which  the  appeal  is  taken,  conditioned  as  herein  provided 
for  such  appeal;  in  which  cases  the  appeal  shall  operate  as  a 
supersedeas  without  security,  and  except  also,  that  in  all 
other  cases  where  a  corporation,  other  than  a  county, 
township  or  municipal  corporation,  appeals  on  its  own  be- 
half, such  appeal  shall  be  quashed,  unless  bail  is  given  to 
operate  as  a  supersedeas  as  by  this  act  required.  Act  May 
19,  1897,  §15,  P.  L.  67,  2  Purd.  1449,  pi.  61. 

(1)  Appeals  Without  Security,     (a)  Under  statutes  prior  to  Act 
of  1897,  appeals  could  not  be  taken  without  entry  of  security  for  costs : 
Moody 's  Ap.,  1  Penny.  287,  1882;  Parrish's  Ap.,  42  L.  I.  80,  1885; 
Marks  v.  Baker,  2  Pa.  Super.  167,  1896;  Page  v.  McNaughton  Co.,  2 
Pa.  Super.  519, 1896;  (b)  under  Act  1897  appeal  may  be  taken  without 
security,  but  does  not  operate  as  supersedeas:  Com.  v.  Hill,  185  Pa. 
385,  1898;  Locher's  Est.,  16  Dist.  787,  1907;  Schock  v.  Light  Co.,  17 
Dist.  561,  1907.    For  appeal  in  criminal  cases,  etc.,  see  §179,  below. 

(2)  Appeal  in  Representative  Capacity,     (a)  This  exception  does 
not  apply  where  appeal  by  administrator  is  based  on  his  own  miscon- 
duct: Revell's  Est.,  28  C.  C.  225  s.  c.  12  Dist.  138,  1903;   (b)  or  in 
case  of  appeal  under  similar  circumstances  by  assignee  for  creditors: 
Krodel's  Est.,  14  Dist.  417  s.  c.  22  Lane.  36,  1904;    (c)   where  re- 
ceiver for  railroad  does  not  intervene  in  suit  pending  against  company, 

240 


SUPERSEDEAS. 


§§  163-181]  Decree  for  Payment  of  Money,  etc.  §  169 

and  judgment  is  entered  for  plaintiff,  receiver  cannot  appeal  without 
filing  bond :  Palmer  v.  R.  R.,  215  Pa.  518,  1906. 

(3)  Appeal  by  Private  Corporation,  (a)  Appeal  by  private  cor- 
poration cannot  be  taken  without  filing  bond  approved  by  prothono- 
tary:  Denlinger  v.  Power  Co.,  32  Pa.  Super.  418,  1907;  (b)  Act  March 
15,  1847,  §1,  P.  L.  361,  2  Purd.  2126,  pi.  106,  which  provided  that  any 
corporation,  except  municipal  corporations,  appealing  or  taking  a  writ 
of  error  must  enter  bail  absolute  for  the  payment  of  debt,  interest 
and  costs  on  affirmance  of  the  judgment,  was  expressly  repealed  by 
Act  May  19, 1897,  §22,  P.  L.  67,  2  Purd.  1466,  pi.  90,  being  superseded 
by  the  exception  contained  in  the  above  section  of  the  latter  act. 

§169.  — Decree  Directing  Payment  of  Moneys  —  Re- 
lease of  Li-en  of  Judgment.  Hereafter  it  shall  be  lawful  for 
any  one  against  whom  an  order,  judgment  or  decree  direct- 
ing the  payment  of  money  shall  have  been  made  by  any 
court  of  record  of  this  commonwealth,  upon  taking  or 
entering  an  appeal  to  the  Superior  Court  or  the  Supreme 
Court  of  this  commonwealth,  to  enter  bail  in  the  court 
below  in  double  the  amount  of  such  order,  judgment  or 
decree,  with  security  to  be  approved  by  the  said  court, 
conditioned  for  the  payment  of  the  amount  finally  adjudged 
to  be  due  upon  such  order,  judgment  or  decree,  including 
interest  and  costs ;  or  that  the  appellant  in  such  cases  may, 
in.  lieu  of  entering  such  bail,  deposit  with  the  prothonotary 
ol  the  said  court  below,  in  cash,  such  amount  as  the  said 
court  shall,  upon  petition,  deem  to  be  sufficient  to  insure 
the  payment  of  the  amount  finally  adjudged  to  be  due  and 
owing  upon  said  order,  judgment  or  decree;  and  in  either 
case,  upon  the  entry  of  said  bail  or  the  deposit  of  money, 
as  aforesaid,  and  upon  the  said  appeal  being  perfected,  the 
said  judgment  and  the  verdict,  when  such  judgment  has 
been  entered  on  a  verdict,  order,  or  decree,  shall  cease  to 
be  a  lien  against  the  real  estate  of  the  appellant;  and  the 
prothonotary  or  clerk  of  the  said  court  shall  thereupon 

241 

16 


SUPERSEDEAS. 


§§169,170  Decrees:    Money — Liens — Personalty  [Chap.  10, 

mark  upon  the  docket  and  upon  the  margin  of  the  judg- 
ment index,  "appeal  perfected;  lien  discharged:"  Pro- 
vided, however,  That  upon  the  return  of  the  record  of  such 
judgment,  order  or  decree  to  the  said  court  below,  with  a 
remittitur  certifying  the  said  judgment,  order  or  decree  to 
have  been  affirmed  in  whole  or  in  part,  the  prothonotary 
shall  thereupon  enter  judgment,  as  of  that  date,  against 
the  appellant  for  the  amount  due  upon  the  said  judgment, 
order  or  decree  as  affirmed,  with  interest  and  costs  as  pro- 
vided by  law.  Act  April  22,  1909,  §i,  P.  L.  103,  5  Purd. 
54.67,  pi.  i. 

(1)  What  Decrees  Are  Included,     (a)  Judgments  on  sci.  fa.  sur 
mortgage  are  included:  Smead  v.  Stuart,  194  Pa.  578,  1900;  Mover  v. 
Dodson,  9  Del.  398,  1905;  (b)  but  not  interlocutory  decrees:  Titusville 
Oil  Exchange,  10  Pa.  Super.  496,  1899;  (c)  appeal  on  issue  d.  v.  n. 
will  not  supersede  partition  proceedings:  Mushrush's  Est.,  23  C.  C. 
629,  1899. 

(2)  Bond — Liability  of  Sureties,     (a)  Bond  on  appeal  from  judg- 
ment on  sci.  fa.  sur  mortgage  is  security  for  debt  as  well  as  costs : 
Brown  v.  Lovrein  &  Co.,  4  W.  N.  C.  538,  1878;  Com.  v.  Cummings,  26 
C.  C.  140  s.  c.  11  Dist.  355,  1902;  (b)  unless  in  case  where  mortgage 
expressly  provides  there  shall  be  no  personal  liability:  Hosie  v.  Gray, 
73  Pa.  502,  1871 ;  (c)  bond  for  costs  is  sufficient  in  appeal  from  decree 
surcharging  executor  with  money  due  estate,  where  no  order  to  pay 
has  been  entered  against  him:  Lafferty's  Est.,  19  C.  C.  613,  1897;  (d) 
damages  includes  debt  and  every  other  liquidated  sum  of  money  award- 
ed by  judgment  or  decree  against  defendant;  in  an  action  to  recover 
the  purchase  money  on  an  agreement  to  sell  real  estate,  bond  is  condi- 
tioned for  payment  of  costs  and  damages :  Com.  v.  Harvey,  51  P.  L.  J. 
(0.  S.)  380,  1904. 

§170.  —  Decree  Directing  Assignment  or  Delivery 
of  Personal  Property.  An  appeal  from  an  order  or  decree 
directing  the  assignment  or  delivery  of  any  kind  of  per- 
sonal property,  shall  operate  as  a  supersedeas,  if  the  appel- 
lant brings  the  article  required  to  be  assigned  or  delivered 

242 


SUPERSEDEAS. 


§§163-181]  Decrees:   Personalty — Perishable — Conveyance          §§1702 

into  the  court  below,  and  gives  bond  with  sufficient  surety 
or  sureties,  in  double  the  amount  of  all  costs  accrued  and 
likely  to  accrue,  or  gives  bond  with  sufficient  surety  or 
sureties  in  at  least  double  the  value  thereof,  as  found  by 
said  court  and  the  amount  of  said  costs,  and  conditioned 
in  either  event  that  the  appeal  be  prosecuted  with  effect, 
that  the  appellant  will  abide  by  and  obey  the  order  or  de- 
cree of  the  appellate  court  and  will  pay  all  costs  and  dam- 
ages awarded  by  the  appellate  court  or  legally  chargeable 
against  him.  Act  May  19,  1897,  §7,  P.  L.  67,  2.  Purd.  1448, 

Pi-  53- 

§171.  —  Sale  of  Perishable  Property.  Nothing  herein 
contained  shall  operate  to  hinder  the  court  below,  in  its 
discretion,  from  directing  and  enforcing  the  sale  of  any 
property  that  may  be  perishable,  notwithstanding  an  ap- 
peal, the  fund  realized  to  be  brought  into  court  pending 
the  appeal,  nor  to  hinder  the  court  below  from  proceeding 
with  the  cause  appealed  from  in  anything  not  affected  by 
the  subject  matter  of  the  appeal.  Act  May  19,  1897,  §16, 
P.  L.  67,  2  Purd.  1450,  pi.  62. 

§172.     —  Decree  Directing  Execution  of  Conveyance. 

Whenever  a  bill  of  complaint  is  filed,  or  shall  heretofore 
have  been  filed,  in  any  court  of  common  pleas  of  this  com- 
monwealth, sitting  in  equity,  and  the  complainant  therein 
prays  that  the  defendant  be  compelled  to  specifically  per- 
form his  contract  for  the  purchase  of  land,  and  the  defend- 
ant in  any  such  bill  of  complaint  answers  that  the  title 
to  the  land  mentioned  and  described  therein  is  not  good 
and  marketable,  an  appeal  to  the  Supreme  or  Superior 
Court  from  an  order,  judgment  or  decree,  directing  the 
payment  of  money  and  the  execution  of  any  conveyance 

243 


SUPERSEDEAS. 


§§  172,  173  Decrees:    Conveyance — Injunctions  [Chap.  10, 

or  other  instrument  by  the  defendant  shall  operate  as 
a  supersedeas  if  the  appellant  executes  the  convey- 
ance or  instrument  directed,  and  deposits  the  same  in 
the  court  below,  and  gives  bond,  with  sufficient  surety  or 
sureties  in  double  the  amount  of  all  costs  accrued  or  likely 
to  accrue,  conditioned  that  the  appeal  be  prosecuted  with 
effect,  that  the  appellant  will  abide  by  and  obey  the  order 
or  decree  of  the  appellate  court,  and  will  pay  all  costs  and 
damages  awarded  by  the  appellate  court  or  legally  charge- 
able against  him.  Act  May  28,  1907,  §i,  P.  L.  283,  5  Purd. 
5467,  pi.  7,  and  5467,  pi.  2. 

§173.  —  Decree  Granting  Injunction.  An  appeal  from 
an  order  or  decree  granting  an  injunction,  or  relief  in  the 
nature  thereof,  shall  operate  as  a  supersedeas  if  the  appel- 
lant gives  bond  with  sufficient  surety  or  sureties,  in  such 
sum  as  the  court  below  shall  direct,  conditioned  that  the 
appeal  be  prosecuted  with  effect,  that  the  appellant  will 
pay  all  costs  accrued  and  likely  to  accrue,  and  will  pay  all 
damages  and  injuries  suffered  by  appellees  from  the  time 
of  decree  entered  until  final  compliance  with  the  order  en- 
tered on  the  appeal,  but  the  court  below  may,  notwith- 
scanding  the  appeal,  make  such  order  or  decree  as  may  be 
necessary  to  preserve  the  status  quo  pending  the  determi- 
nation of  the  appeal.  Act  May  19,  1897,  §9,  P.  L.  67,  2 
Purd.  1448,  pi.  55. 

(1)  When  Supersedeas  not  Allowed.     A  supersedeas  will  not  be 
allowed  on  appeal  from  decree  on  preliminary  injunction  when  appel- 
lant had  been  put  in  possession  of  market  stall  to  which  he  held  lease 
which  was  subsequently  determined  to  be  merely  a  revocable  license: 
Levenson  v.  Pittsburg,  54  P.  L.  J.  (0.  S.)  296, 1906. 

(2)  Fixing  Bail — Status  Quo.    Where  injunction  is  made  perman- 
ent and  defendants  appeal,  the  court  will  fix  time  for  hearing  as  to 
amount  of  bail  and  propriety  of  preserving  status  quo :  Fuller  v.  Fisk, 
9  Lack.  Jur.  269,  1908. 

244 


SUPERSEDEAS. 


§§163-181]  Decrees:    Realty— Trustees  §§174-175 

§174.  —  Decree  in  Actions  Involving  Title  or  Pos- 
session of  Realty.  An  appeal  in  an  action  of  ejectment  or 
other  action  involving  the  title  to  or  possession  of  real 
property,  when  the  judgment  below  is  against  the  party  in 
possession,  shall  operate  as  a  supersedeas  if  the  appellant 
gives  bond  with  sufficient  surety  or  sureties  in  double  the 
sum  he  will  probably  have  to  pay,  in  case  the  judgment  be 
affirmed,  conditioned  that  the  appeal  be  prosecuted  with 
effect,  that  the  appellant  will  not  commit,  or  suffer  to  be 
committed,  any  waste  on  the  property  in  dispute,  that  he 
will  pay  whatever  mesne  profits,  accruing  after  the  judg- 
ment, shall  be  thereafter  recovered  against  him,  and  all 
costs  and  damages  awarded  by  the  appellate  court  or  le- 
gally chargeable  against  him.  Act  May  19,  1897,  §10,  P.  L. 
67,  2  Purd.  1449,  pi.  56. 

(1)  Proceedings  in  Eminent  Domain.     Appeal  from  judgment  in 
issue  under  proceedings  to  condemn  land  for  lateral  railroad,  oper- 
ates as  supersedeas  without  entry  of  bond :  Painter 's  Lateral  Railroad, 
198  Pa.  461, 1901. 

(2)  Conditions  of  Bond,     (a)  Bond  must  be  given  in  double  the 
sum  appellant  will  probably  have  to  pay,  conditioned  to  prosecute 
appeal,  commit  no  waste,  and  pay  mesne  profits,  costs  and  damages: 
Schock  v.  Light  Co.,  17  Dist.  561,  1908;  (b)  when  bond  is  not  as  re- 
quired by  this  section,  appeal  will  not  act  as  supersedeas:  Lazarus  v. 
Morris,  13  Luz.  L.  Reg.  Rep.  401,  1907. 

§175.  —  Decree  Dismissing  or  Removing  Persons  Act- 
ing in  Fiduciary  Capacity.  An  appeal  from  an  order  or 
decree  dismissing  or  removing  any  person  acting  in  any 
fiduciary  capacity  whatsoever,  shall  operate  as  a  superse- 
deas if  the  appellant  deposits  in  the  court  below  all  the  as- 
sets of  the  estate,  as  found  by  the  court  below  are  or  should 
be  in  his  hands,  and  gives  bond  with  sufficient  surety  or 
sureties  in  double  the  amount  of  the  costs  accrued  and  like- 

245 


SUPERSEDEAS. 


§§  175-7  Decrees:  Trustees— Costs,  etc.  [Chap.  10, 

ly  to  accrue,  or  gives  bond  with  sufficient  surety  or  sureties 
in  at  least  double  the  total  undeposited  assets  of  the  estate, 
ao  determined  by  the  court  below,  and  all  said  costs,  and 
conditioned,  in  either  event,  that  the  appeal  be  prosecuted 
with  effect,  and  that  the  appellant  will  pay  such  sum  as 
shall  be  found  to  be  due  to  the  estate  by  such  fiduciary,  and 
all  costs  and  damages  awarded  by  the  appellate  court  or 
legally  chargeable  against  him.  Act  May  19,.  1897,  §11, 
P.  L.  67,  2  Purd.  1449,  pi.  57. 

(1)  Amount  of  Bond.  On  appeal  from  order  removing  executor,  it 
is  error  to  include  value  of  realty  in  fixing  amount  of  bond  for  super- 
sedeas:  Kuntz's  Est.,  230  Pa.  557, 1911. 

§176.  —  Decree  for  Costs.  An  appeal  from  an  order, 
judgment  or  decree  for  costs  only,  shall  operate  as  a  su- 
persedeas  if  the  appellant  gives  bond  with  sufficient  surety 
or  sureties  in  double  the  amount  of  all  costs  accrued,  and 
likely  to  accrue,  conditioned  that  the  appeal  be  prosecuted 
with  effect,  and  that  the  appellant  will  pay  all  costs  and 
damages  awarded  by  the  appellate  court,  or  legally  charge- 
able against  him.  Act  May  19,  1897,  §13,  P.  L.  67,  2  Purd. 

1449,  pl-  59- 

§177.  —  Decree  Within  More  than  One  Class.  An  ap- 
peal from  an  order,  judgment  or  decree  which  comes  within 
more  than  one  of  the  classes  above  referred  to  shall  not  op- 
erate as  a  supersedeas  unless  the  bond,  with  sufficient 
surety  or  sureties,  be  in  such  amount  and  with  such  condi- 
tions as  shall  adequately  secure  the  appellees,  in  accordance 
with  the  provisions  made  for  all  the  classes  within  which 
the  order,  judgment  or  decree  comes.  Act  May  19,  1897, 
§14,  P.  L.  67,  2  Purd.  1449,  pl.  60. 


246 


SUPERSEDEAS. 


§§  163-181]     Decrees:    Account — Damages — Special  Allocatur         §§  178-80 

§  178.  —  Distribution  of  Account,  etc.,  or  Award  of 
Damages.  Nor  shall  an  appeal  postpone  payment  in  ac- 
cordance with  the  final  confirmation  of  any  account,  adju- 
dication, distribution,  report  or  award  of  damages  by  a 
jury  of  view,  except  to  the  extent  necessary  to  preserve  the 
right  of  the  appellant,  unless  specially  so  ordered  by  the 
court  below  or  by  the  appellate  court  or  by  any  judge 
thereof.  Act  May  19,  1897,  §16,  P.  L.  67,  2  Purd.  1450. 

§179.  —  Special  Allocatur — Required  in  Certain  Cases. 
In  appeals  from  judgments  and  decrees  in  mandamus,  quo 
warranto,  contested  election  cases,  from  sentences  in  crimi- 
nal proceedings  and  all  other  classes  of  cases  not  herein 
otherwise  provided  for,  the  appeal  shall  not  operate  as  a  su- 
persedeas  unless  so  ordered  by  the  court  below  or  the  ap- 
pellate court  or  any  judge  thereof,  either  by  general  rule 
or  special  order,  and  upon  such  terms  as  may  be  required 
by  the  court  or  judge  granting  the  order  of  supersedeas. 
Act  May  19,  1897,  §12,  P.  L.  67,  2  Purd.  1449,  pi.  58. 

(1)  Power  of  Court  to  Order  Supersedeas.  (a)  Although  appeal,  by 
terms  of  statute,  is  not  supersedeas,  appellate  court  has  power  to 
order  that  it  shall  so  operate  upon  entry  of  proper  bond :  Silliman  v. 
Whitmer,  173  Pa.  401, 1896 ;  (b)  also  court  below,  in  exercise  of  proper 
discretion :  Com.  v.  Ewing,  176  Pa.  491,  1896. 

(2)  Criminal  Cases,    (a)  In  capital  and  other  criminal  cases,  appeal 
does  not  supersede  execution  issued,  unless  taken  within  three  weeks 
from  sentence,  and  mandate  of  Governor  directing  execution  of  sen- 
tence of  death  is  ' '  execution  issued ' '  within  meaning  of  act :  Com.  v. 
Hill,  185  Pa.  385,  1898;  (b)  a  supersedeas  in  criminal  case,  where  de- 
fendant is  released  on  bail,  does  not  shorten  sentence  but  merely  sus- 
pends its  execution:  Com.  v.  Spencer,  9  Kulp  159,  1898. 

§!8o.  —  —  Procedure  to  Obtain — Supreme  Court. 
Petitions  for  ....  special  supersedeas  or  other  inter- 
locutory order  must  set  forth  the  question  involved,  the 

247 


SUPERSEDEAS. 


§§  180, 181  Special  Allocatur — Procedure  [Chap.  10, 

opinion  of  the  court  and  the  grounds  on  which  an  .... 
order  is  asked;  and,  where  practicable,  must  be  accom- 
panied by  copies  of  the  paper-books.  Supreme  Court  Rule. 
19. 

All  such  petitions  shall  be  filed  with  the  prothonotary  of 
the  district  in  which  the  cause  is  pending,  and  shall  be  pre- 
sented by  him  to  the  court  or  the  most  convenient  justice 
thereof.  For  the  purpose  of  computation  of  time,  etc.,  the 
matter  shall  be  deemed  to  be  sub  judice  from  the  date  of 
such  filing.  Supreme  Court  Rule  20. 

In  all  applications  for  an  order  of  supersedeas  under  the 
Act  of  May  19,  1897,  P.  L.  67,  [2  Purd.  1447,  pi.  48],  or 
for  any  interlocutory  order,  the  applicant  shall  give  notice 
to  counsel  on  the  other  side  when  and  where  the  applica- 
tion is  to  be  made,  unless  the  exigency  of  the  case  be  such 
as  to  impel  the  court  or  judge  before  whom  the  applica- 
tion is  made  to  dispense  with  such  notice.  Supreme  Court 
Rule  47;  Superior  Court  Rule  37. 

If  the  prayer  of  the  petition  be  granted,  the  prothonotary 
shall  notify  counsel  for  the  petitioner,  who  must  thereupon 
promptly  file  his  praecipe  and  perfect  the  appeal  in  accord- 
ance with  the  statute,  or  take  such  action  in  cases  not  for 
appeal  as  may  be  appropriate  to  the  relief  sought.  Supreme 
Court  Rule  21. 

(1)  Form  of  Petition.  For  form  of  petition  for  special  allocatur, 
see  Appendix,  §30. 

§181. Superior  Court.  Petitions  for  the  allow- 
ance of  special  supersedeas  or  other  interlocutory  order 
will  not  be  entertained  until  after  an  appeal  has  been  actu- 
ally taken.  They  must  set  forth  the  questions  involved 
and  the  judgment  of  the  court.  In  criminal  cases  they 
must  set  forth  specifically  and  clearly  the  rulings  com- 

248 


SUPERSEDEAS. 


§§  163-181]  In  Superior  Court  §  181 

plained  of  and  the  amount  of  bail  which  the  defendant  was 
under  in  the  court  below,  and  be  accompanied  by  a  copy  of 
the  indictment.  Superior  Court  Rule  36. 

(1)  Suspension  of  Proceedings.  The  Superior  Court  will  not  sus- 
pend proceedings  on  an  appeal  until  an  appeal  to  the  Supreme  Court 
is  determined,  when  the  latter  appeal  is  not  a  supersedeas  and  it  does 
not  appear  that  the  same  questions,  and  those  only,  are  raised  on  the 
appeal  to  the  Superior  Court  as  are  raised  on  the  appeal  pending  in  the 
Supreme  Court:  Harris's  Petition,  15  Pa.  Super.  471,  1900. 


249 


MODES  OF  REVIEW. 


§  182  All  Proceedings  called  "Appeal."  [Chap.  11, 

CHAPTER  XL 

MODES  OF  REVIEW. 
§182.    Appellate  Proceedings — Name  and  Procedure. 

§182.  Appellate  Proceedings — Name  and  Procedure. 
All  appellate  proceedings  in  the  Supreme  Court  hereto- 
fore taken  by  writ  of  error,  appeal  or  certiorari  shall  here- 
after be  taken  in  a  proceeding  to  be  called  an  appeal.  Act 
May  9,  1889,  §i,  P.  L.  158,  2  Purd.  1445,  pi.  45. 

(1)  Modes  of  Review  Remain — Determination  from  Record,     (a) 
Since  the  passage  of  this  act,  the  modes  of  reviewing  cases  by  writ  of 
error,  certiorari  and  appeal  which  were  in  use  prior  to  the  act,  still 
remain  applicable  in  the  same  kinds  of  cases,  within  the  same  limits, 
and  with  the  same  effect  as  before,  the  only  difference  being  that  they 
are  now  all  called  appeals:  Rand  v.  King,  134  Pa.  641,  1890;   (b)  an 
appeal  in  name  may  therefore  be  a  writ  of  error  or  a  certiorari  in  legal 
effect,  and  it  is  necessary,  in  every  case,  to  look  into  the  record  and 
determine  whether  what  is  called  an  appeal  is  such  in  fact,  or  is  a 
writ  of  error  or  a  certiorari :  Rand  v.  King,  134  Pa.  641,  1890 ;  Camp 
Hill  Boro.,  142  Pa.  511, 1891;  Gates  v.  R.  R.,  154  Pa.  566, 1893;  Christ- 
ner  v.  John,  171  Pa.  527,  1895;  Laird's  Ap.,  2  Pa.  Super.  300,  1896; 
Com.  v.  Tragic,  4  Pa.  Super.  159,  1897;  Thompson  v.  Preston,  5  Pa. 
Super.  154,  1897;  Hapgood  Shoe  Co.  v.  Saupp,  7  Pa.  Super.  480,  1898; 
Vandermis  v.  Gilbert,  10  Pa.  Super.  570,  1899;  Swoyerville  Boro.,  12 
Pa.  Super.  118,  1899;  Miller  v.  Summers,  13  Pa.  Super.  127, 1900;  Dia- 
mond Street,  196  Pa.  254,  1900;  Galeton  Poor  District  v.  Poor  Dist., 
18  Pa.  Super.  428,  1901;  Shoup  v.  Shoup,  205  Pa.  22,  1903;  Katharine 
Water  Co.,  32  Pa.  Super.  94,  1906;  Com.  v.  Supt.  Co.  Prison,  220  Pa. 
401,  1908 ;  Campbell  v.  Erb,  35  Pa.  Super.  436,  1908 ;  Com.  v.  Maurer, 
42  Pa.  Super.  170,  1910. 

(2)  Writ  of  Error  Defined — When  Error  Lies — Scope  of  Review, 
(a)  A  writ  of  error  was  the  method  for  reviewing  proceedings  which 
followed  the  course  of  the  common  law:  McClemmons,  v.  Graham,  3 

250 


MODES  OF  REVIEW. 


§182]  Writ  of  Error  §  182  (2)  (a)-(q; 

Bin.  88,  1810;  Fisher  v.  Kean,  1  Watts  259,  1832;  McGinnis  v.  Com., 
74  Pa.  245,  1874;  Klein's  Ap.,  11  W.  N.  C.  449,  1882;  (b)  the  writ  lay 
against  any  final  judgment,  or  award  in  the  nature  of  a  judgment,  in 
any  court  of  record:  Com.  v.  Judges,  3  Bin.  273,  1810.  On  this  writ 
the  judgment  is  reviewed  with  reference  to  alleged  errors  of  law  which 
are  pointed  out  by  exceptions  taken  to  the  action  of  the  trial  court  at 
the  time  when  the  rulings  are  made,  and  as  a  general  rule  the  power 
of  the  Supreme  Court  is  limited  to  the  questions  so  raised:  Cathcart 
v.  Com.,  37  Pa.  108, 1860;  Guthrie  v.  Wilson,  40  Pa.  430, 1861;  Warsaw 
Twp.  v.  Knox  Twp.,  107  Pa.  301,  1884;  Montoursville  Overseers  v. 
Fairfield  Overseers,  112  Pa.  99, 1886;  Rand  v.  King,  134  Pa.  641, 1890; 
(c)  the  proper  method  of  objecting  to  writ  for  matters  not  appearing 
on  face  of  record  is  by  plea  or  motion  to  quash :  Davis  v.  Hood,  13  Pa. 
171,  1850;  Showers  v.  Showers,  27  Pa.  485,  1856;  (d)  in  the  following 
cases,  writs  of  error  were  held  to  be  the  proper  remedy  from  judgment 
of  common  pleas  and  quarter  sessions;  (e)  from  order  setting  aside 
service  of  attachment  execution:  Klein's  Ap.,  11  W.  N.  C.  449,  1882; 
(f)  from  distribution  of  money  contrary  to  verdict:  Fisher  v.  Kean, 
1  Watts,  259,  1832 ;  (g)  from  judgment  on  verdict  on  traverse  to  find- 
ing of  inquest  as  to  habitual  drunkard :  McGinnis  v.  Com.,  74  Pa.  245, 
1873;  (h)  from  execution  for  damages  for  injury  by  dam  built  under 
authority  of  act  providing  appeal,  since  judgment  was  in  action  at 
common  law:  Hanover  Turnpike  Co.  v.  Craighead,  5  Pa.  470,  1846; 
(i)  from  judgment  in  account  rendered  on  report  of  referee  under  Act 
June  16,  1836,  No.  1,  P.  L.  717,  1  Purd.  342,  pi.  2:  Harris  v.  Sheldon, 
1  Mona.  188,  1889;  (j)  from  award  of  arbitrators  on  which  judgment 
has  been  entered :  Ebersoll  v.  Krug,  3  Bin.  528, 1811 ;  Lewis  v.  England, 
4  Bin.  5,  1811;  Sicard  v.  Peterson,  3  S.  &  R.  468, 1817;  Lentz  v.  Stroh, 
6  S.  &  R.  34,  1820;  Wilson  v.  Colwell,  3  Watts  212,  1834;  (k)  from 
order  confirming  auditors'  report  as  to  counsel  fees  in  partition: 
Grubbs's  Ap.,  82  Pa.  23,  1876;  (1)  from  order  setting  aside  execution: 
Feagley  v.  Norbeck,  127  Pa.  238,  1889;  (m)  from  refusal  to  take  off 
non-suit :  Short  v.  Willing,  1  W.  N.  C.  460,  1875 ;  Haverly  v.  Mercur, 
78  Pa.  257,  1875;  see  §82,  note  (1) ;  (n)  from  order  striking  judgment 
from  docket :  Kittanning  Ins.  Co.  v.  Scott,  101  Pa.  449,  1882 ;  Kittan- 
ning  Ins.  Co.'s  Ap.,  13  W.  N.  C.  54,  1882;  (o)  from  order  striking  off 
municipal  claim :  Phila.  v.  Dungan,  124  Pa.  52,  1889 ;  (p)  from  judg- 
ment in  common  pleas  on  forfeited  recognizance:  Com.  v.  Rhoads,  9 
Pa.  488, 1849;  (q)  from  final  judgment  in  partition:  Hawk  v.  Jones,  24 

251 


MODES  OF  REVIEW. 


§  182  (2)  (q)-(3)  (a)         Writ  of   Error— Appeal  [Chap.  11, 

Pa.  127, 1854;  Laird  v.  Walkinshaw,  15  Atlan.  898, 1888;  (r)  from  dis- 
missal of  appeal  from  justice:  Beale  v.  Dougherty,  3  Bin.  432,  1811; 
(s)  from  judgment  on  certiorari  in  summary  proceedings:  Com.  v. 
Burkhart,  23  Pa.  521,  1854;  (t)  from  judgment  on  certiorari  in  pro- 
ceedings before  two  justices  of  peace  brought  to  obtain  possession  of 
land :  Clark  v.  Yeat,  4  Bin.  185,  1811 ;  Clark  v.  Patterson,  6  Bin.  128, 
1813;  Cooke  v.  Reinhart,  1  Rawle,  317,  1829;  (u)  from  distribution 
on  judgment  in  feigned  issue:  Reed's  Ap.,  71  Pa.  378,  1872;  (v)  from 
judgment  in  feigned  issue  if  tried  before  jury  according  to  course  of 
common  law ;  but  such  writs  are  discouraged :  Brown 's  Ap.,  26  Pa.  490, 
1856;  Christophers  v.  Selden,  28  Pa.  165,  1857;  Brown  v.  Parkinson, 
56  Pa.  336, 1868;  (w)  from  judgment  on  verdict  in  issue  d.  v.  n. :  Van- 
sant  v.  Boileau,  1  Bin.  444,  1808;  (x)  from  judgment  in  inquisition  ad 
damnum:  Schuylkill  Nav.  Co.  v.  Thoburn,  7  S.  &  R.  411,  1821;  (y) 
from  judgment  in  common  law  form  under  proceedings  by  attachment 
against  vessel  under  Act  Feb.  9,  1793,  3  Sm.  L.  89 :  Portland  v.  Lewis, 
2  S.  &R.  197, 1816;  (z)  from  judgment  on  plea  of  nul  tiel  record:  Todd 
v.  Patterson,  17  S.  &  R.  345,  1828;  Crutcher  v.  Com.,  6  Whar.  340, 
1841;  (a2)  in  lateral  railroad  proceedings  when  court  below  has  passed 
on  all  questions  of  law  and  fact:  Hall's  Ap.,  56  Pa.  238,  1867;  (b2) 
decree  of  partition  in  common  pleas :  Hawk  v.  Jones,  24  Pa.  127,  1854 ; 
Land's  Ap.,  1  Mona.  755,  1888;  (d2)  refusing  to  strike  off  an  erron- 
eous judgment :  Post  v.  Wallace,  110  Pa.  121,  1885 ;  Huston  Twp.  Ins. 
Co.  v.  Beale,  110  Pa.  321,  1885;  (e2)  refusal  to  permit  set-off  of  one 
judgment  against  another:  McLean  v.  Bindley,  114  Pa.  559,  1887;  (f2) 
arresting  judgment:  Skinner  v.  Robeson,  4  Yeates  375,  1807;  Benjamin 
v.  Armstrong,  2  S.  &  R.  392,  1816;  (g2)  or  reducing  judgment:  Fitz- 
gerald v.  Caldwell,  Add.  119,  1793;  (h2)  or  marking  it  to  use  of 
surety:  Burns  v.  Bank,  1  P.  &  W.  395,  1830;  Moser  v.  Hoch,  3  Pa. 
230,  1846;  (12)  awarding  execution.  Harger  v.  Com'rs,  12  Pa.  251, 
1849;  (J2)  staying  execution  indefinitely:  Patterson  v.  Patterson,  27 
Pa.  40,  1856;  (k2)  setting  aside  execution:  Pontius  v.  Nesbit,  40  Pa. 
309,  1861;  (12)  setting  aside  sheriff's  sale:  Mackaness  v.  Long,  85  Pa. 
158,  1878.  For  special  acts  giving  right  to  take  out  writ  of  error  or 
appeal,  see  Chapter  V,  §§48-101,  above. 

(3)  Appeal  Defined — When  Appeal  Lies — Scope  of  Review,  (a) 
An  appeal,  as  it  was  known  prior  to  Act  of  1889,  is  the  proper  mode  of 
review  in  equity  and  orphans'  court  cases  and  those  using  the  equity 
forms:  McClemmons  v.  Graham,  3  Bin.  88,  1810;  see  §229;  Springer 

252 


MODES  OF  REVIEW. 


§  182]  Appeal— Certiorari  §  182  (3)  (a)-(4)  (d) 

v.  Springer,  43  Pa.  518,  1862;  Horton  v.  Miller,  44  Pa.  256,  1863; 
Steel's  Ap.,  72  Pa.  101,  1872;  Gordonier  v.  Billings,  77  Pa.  498,  1875; 
Providence  Pipe  Co.  v.  Chase,  108  Pa.  319,  1885 ;  Leitz  v.  Hohman,  207 
Pa.  289, 1904;  (b)  it  brings  up  the  pleadings  and  the  evidence  on  which 
the  decree  rests,  and  makes  it  necessary  for  the  appellate  court  to  ex- 
amine, and  see  whether  the  decision  is  just  and  conscionable  on  the 
case  that  was  presented  to  the  chancellor  who  made  it:  Piper's 
Ap.,  20  Pa.  67,  1852;  Hallowell's  Ap.,  20  Pa.  215, 1852;  Finney's  Ap., 
37  Pa.  323,  1860;  Rand  v.  King,  134  Pa.  641,  1890;  see  also  §229,  note 
(2)  (a) ;  (c)  no  appeals  lie  in  other  cases  unless  expressly  given  by 
statute:  Gangewere's  Ap.,  61  Pa.  342,  1869;  Chestnut  Street  Case,  86 
Pa.  88,  1878;  Gifford  v.  County,  142  Pa.  408,  1891;  Thomas  v. 
Upper  Merion  Twp.,  148  Pa.  116,  1892;  Lower  Merion  Twp.  v.  Kline, 
211  Pa.  559,  1905;  Schmuck  v.  Hartman,  222  Pa.  190,  1908;  (d)  ap- 
peal is  proper  remedy  to  review  decree  of  divorce:  Miller  v.  Miller,  3 
Bin.  30,  1810;  Andrews  v.  Andrews,  5  S.  &  R.  374,  1819;  Robbarts  v. 
Robbarts,  9  S.  &  R.  191,  1822;  see  §228,  note  (18)  (b2).  For  special 
statutes  giving  right  to  appeal,  see  Chapter  V,  §§48-101,  above. 

(4)  Certiorari  Defined — When  Certiorari  Lies — Scope  of  Review. 
(a)  A  writ  of  certiorari  was  the  proper  mode  of  reviewing  the  record 
in  proceedings  statutory  in  nature  and  in  which  no  appeal  was  given 
by  statute:  Ruhlman  v.  Com.,  5  Bin.  24,  1812;  Kimber  v.  County,  20 
Pa.  366, 1853;  Chase  v.  Miller,  41  Pa.  403, 1862;  Northampton  County's 
Ap.,  57  Pa.  452,  1868;  Barnes  v.  Com.,  2  Penny.  506,  1881;  Dolan's 
Ap.,  108  Pa.  564,  1885;  Wetherald  v.  Shupe,  109  Pa.  389,  1885;  Parks 
v.  Watts,  112  Pa.  4,  1886;  Diamond  Street,  196  Pa.  254,  1900;  Kath- 
arine Water  Co.,  32  Pa.  Super.  94,  1906;  Schmuck  v.  Hartman,  222 
Pa.  190,  1908;  Com.  v.  Layton,  45  Pa.  Super.  582,  1911;  (b)  but  the 
writ  does  not  lie  where  a  statute  provides  that  the  judgment  of  the 
lower  court  shall  be  final  and  conclusive;  Spicer  v.  Rees,  5  Rawle  119, 
1835;  Silvergood  v.  Storrick,  1  Watts.  532,  1833;  Carpenter's  Case, 
14  Pa.  486,  1850;  McNeil's  Election,  111  Pa.  235,  1886;  Mahanoy  City 
v.  Wadlinger,  142  Pa.  308, 1891 ;  (c)  the  writ  brings  up  only  the  record : 
Com.  v.  Nathans,  5  Pa.  124, 1847;  Holland  v.  White,  120  Pa.  228,  1888; 
Carlson's  License,  127  Pa.  330,  1889;  (d)  and  court  will  review  only 
such  errors  as  appear  on  the  face  of  the  record:  Chase  v.  Miller,  41 
Pa.  403,  1862;  Peet  v.  Pittsburg,  96  Pa.  218,  1880;  Hamilton  Street, 
148  Pa.  640,  1892;  Keller's  Private  Road,  154  Pa.  547,  1893;  Com.  v. 
Ramsay,  166  Pa.  642,  1895;  Plains  Twp.'s  Ap.,  206  Pa.  556,  1903; 

253 


•MODES  OF  REVIEW. 


§182  (4)  (d)-(k)  Certiorari  [Chap.  11, 

Mulholland's  Case,  217  Pa.  631, 1907;  Perry  Twp.  Road,  36  Pa.  Super. 
131,  1908;  (e)  neither  opinion  of  court  nor  evidence  forms  any  part 
of  record,  and  therefore  will  not  be  examined  on  certiorari :  Shenango 
Twp.  v.  Wayne  Twp.,  34  Pa.  184,  1859;  Esling's  Ap.,  89  Pa.  205,  1879; 
Mathew's  Case,  92  Pa.  138,  1879;  Germantown  Avenue,  99  Pa.  479, 
1882;  McCandless  Twp.  Road,  110  Pa.  605,  1885;  Darby  v.  Sharon 
ffill,  112  Pa.  66,  1886;  Rand  v.  King,  134  Pa.  641,  1890;  Carlson's 
Case,  127  Pa.  330,  1889;  Nobles  v.  Piolett,  16  Pa.  Super.  386,  1901; 
Herrick  Twp.  Road,  16  Pa.  Super.  579, 1901 ;  West  Donegal  Twp.  Road, 
21  Pa.  Super.  620,  1902;  Daughters  of  American  Revolution  v.  Schen- 
ley,  204  Pa.  572, 1903;  Com.  v.  Brownell,  35  Pa.  Super.  249,  1908;  (f) 
but  on  summary  petition  in  case  of  contested  nomination  certificate, 
appellate  court  must  look  at  opinion  of  court  below,  although  as  gen- 
eral rule  opinion  is  not  strictly  part  of  record:  Independence  Party 
Nomination,  208  Pa.  108,  1904;  Chester  County  Nominations,  213  Pa. 
64,  1905;  Mulhollaud's  Case,  217  Pa.  631,  1907;  Krickbaum's  Case, 
221  Pa.  521,  1908;  Foy's  Case,  228  Pa.  14,  1910;  (g)  but  form  and 
validity  of  nomination  certificates  will  not  be  considered :  Von  Moss 's 
Case,  219  Pa.  453,  1908.  In  the  following  cases,  certiorari,  and  not 
appeal  or  writ  of  error,  has  been  held  the  proper  remedy:  (h)  order 
dissolving  or  refusing  to  dissolve  attachment  under  Act  March  17, 1869, 
P.  L.  8,  1  Purd.  260  et  seq. :  Wetherald  v.  Shupe,  109  Pa.  389,  1885 ; 
Parks  v.  Watts,  112  Pa.  4,  1886;  Hoppes  v.  Houtz,  133  Pa.  34,  189); 
Hall  v.  Oyster,  168  Pa.  399,  1895 ;  Moss  v.  Mitchell,  174  Pa.  517,  1893 ; 
Lafferty  v.  Corcoran,  175  Pa.  5,  1896 ;  Slingluff  v.  Sisler,  193  Pa.  2G4. 
1899;  Ingram  v.  Grangers,  33  Pa.  Super.  316,  1907;  (i)  proceedings 
on  warrant  of  arrest  under  Act  of  July  12,  1842,  P.  L.  339,  1  Purd. 
255,  pi.  79:  Hart  v.  Cooper,  129  Pa.  297,  1889;  Greib  v.  Kuttner,  135 
Pa.  281,  1890;  Hapgood  Shoe  Co.  v.  Saupp,  7  Pa.  Super.  480,  1898; 
Miller  v.  Summers,  13  Pa.  Super.  127,  1900;  Phoenix  Press  v.  Mac- 
Kenzie,  32  Pa.  Super.  183,  1906;  (j)  order  granting  or  refusing  liquor 
license:  Berg's  Petition,  139  Pa.  354,  1891;  Brown's  License,  18  Pa, 
Super.  409, 1901;  Weaver's  License,  20  Pa.  Super.  95,  1902;  Brennan's 
License,  33  Pa.  Super.  252, 1907;  Tree's  Case,  33  Pa.  Super.  348,  1907; 
Hambright's  License,  42  Pa.  Super.  498,  1910;  Kirseh's  License,  46 
Pa.  Super.  332,  1911;  (k)  in  road  cases:  Branch  Twp.  Road,  4  Leg. 
Gaz.  413,  1872;  s.  c.  1  Fost.  29;  Thirty-fourth  Street,  81  Pa.  27,  1876; 
Chestnut  Street,  86  Pa.  88, 1878 ;  Biggert  's  Ap.,  1  Mona.  365, 1889 ;  Dia- 
mond Street,  196  Pa.  254,  1900;  Dennison  Twp.  Private  Road,  13  Pa. 

254 


MODES  OF  REVIEW. 


§182]  Certiorari  §  182  (4)  (k)-(a2) 

Super.  227,  1900;  Middletown  Road,  15  Pa.  Super.  167,  1900;  Nobles 
v.  Piolet,  16  Pa.  Super.  386,  1901 ;  Herrick  Twp.  Road,  16  Pa.  Super. 
579,  1901;  Stowe  Twp.  Road,  20  Pa.  Super.  404,  1902;  Rostraver  Twp. 
Road,  21  Pa.  Super.  195,  1902;  West  Donegal  Twp.  Road,  21  Pa. 
Super.  620,  1902;  Daughters  of  American  Revolution  v.  Schenley,  204 
Pa.  572,  1903;  (1)  proceedings  to  condemn  turnpike:  Morrison's  Cove 
Turnpike,  30  Pa.  Super.  51,  1906;  (m)  assessment  of  damages  against 
railroad  for  property  taken:  Schuler  v.  R.  R.,  3  Whar.  555,  1838;  (n) 
proceedings  to  determine  sufficiency  of  bond  in  condemnation  pro- 
ceedings by  water  company:  Katharine  Water  Co.,  32  Pa.  Super. 
94,  1907;  (o)  prosecutions  for  penalty  under  road  laws:  Com.  v. 
Betts,  76  Pa.  465,  1875;  (p)  proceedings  to  annul  tax  assessment 
Schmuck  v.  Hartman,  222  Pa.  190,  1908;  Pittsburg  Supply  Co.'s 
Tax,  38  Pa.  Super.  121,  1909;  (q)  order  in  desertion  proceedings: 
Com.  v.  James,  142  Pa.  32,  1891;  Com.  v.  Tragle,  4  Pa.  Super.  159, 
1897;  Com.  v.  Hart,  12  Pa.  Super.  605,  1900;  Com.  v.  Rogers,  15  Pa. 
Super.  461,  1900;  Com.  v.  Smith,  200  Pa.  363,  1901;  Com.  v.  Dean, 
21  Pa.  Super.  641, 1902;  Com.  v.  Mills,  26  Pa.  Super.  549, 1904;  Com.  v. 
Isaacman,  33  Pa.  Super.  384,  1907;  Com.  v.  Brownell,  35  Pa.  Super. 
249,  1908;  Com.  v.  Edgar,  44  Pa.  Super.  496,  1910;  Com.  v.  Dilks,  45 
Pa.  Super.  339,  1911;  (r)  order  directing  father  to  pay  certain  sum  per 
month  for  support  of  son:  Walker  Twp.  Overseers  v.  Knisely,  17  Pa. 
Super.  415,  1901;  (s)  order  of  removal:  Galeton  Poor  Dist.  v.  Poor 
Dist.,  18  Pa.  Super.  428,  1901;  (t)  order  in  extradition  proceedings: 
Thatcher's  Requisition,  18  Pa.  Super.  533,  1901;  Com.  v.  Superinten- 
dent County  Prison,  220  Pa.  401,  1908;  Com.  v.  Hare,  36  Pa.  Super. 
125,  1908;  (u)  order  of  quarter  sessions  dismissing  appeal  from  bor- 
ough ordinance:  Welsh's  Ap.,  22  Pa,  Super.  392,  1903;  (v)  settlement 
of  county  lines  by  quarter  sessions:  Huntingdon  Line,  8  Pa.  Super. 
380,  1898 ;  Huntingdon  Line,  14  Pa.  Super.  571,  1900 ;  (w)  decree  in- 
corporating or  refusing  to  incorporate  borough:  Swoyerville  Boro., 
12  Pa.  Super.  118,  1890;  Rouseville  Boro.,  12  Pa.  Super.  126,  1899; 
Wernersville  Boro.,  38  Pa.  Super.  462,  1909;  Melbourne  Boro.,  46  Pa. 
Super.  19,  1911;  (x)  proceedings  for  annexation  of  borough  to  city: 
Morrellville  Boro.,  7  Pa.  Super.  532,  1898 ;  (y)  proceedings  for  annexa- 
tion of  adjacent  territory  to  borough:  Camp  Hill  Boro.,  142  Pa.  511, 
1891;  (z)  proceedings  for  annexation  of  land  to  borough  or  township 
for  school  purposes:  Elk  Twp.  School  Dist.,  146  Pa.  1,  1892;  (a2)  pro- 
ceedings to  divide  a  municipality  into  election  districts:  Guffey's  Ap., 

255 


MODES  OF  REVIEW. 


§182  (4)  (b2)-(s2)  Certiorari  [Chap.  11, 

7  Pa.  Super.  478,  1898;  Waynesburg  Boro.'s  North  Ward,  29  Pa.  Su- 
per. 525,  1905;  (b2)  order  dividing  township:  Valley  Twp.  Div.,  146 
Pa.  Ill,  1892;  (c2)  order  certifying  population  of  township:  Spring- 
dale  Twp.,  20  Pa.  Super.  381, 1902;  (d2)  order  relative  to  collection  of 
township  and  district  debts:  Plains  Twp.  Ap.,  206  Pa.  556,  1903;  (e2) 
settlement  of  accounts  of  township  officers  or  judgment  on  report  of 
borough  auditors :  Lower  Merion  Twp.  v.  Cline,  211  Pa.  559,  1905 ;  Fry 
v.  Keiter,  45  Pa.  Super.  538,  1911;    (f2)   review  of  tax  assessment 
where  no  appeal  is  given  by  statute:  Schmuck  v.  Hartman,  222  Pa. 
190,  1908;  (g2)  order  striking  from  record  satisfaction  of  judgment: 
Gilmore  v.  Dunleavy,  6  Pa.  Super.  603,  1898 ;  Shoup  v.  Shoup,  205  Pa. 
22, 1903;  Campbell  v.  Erb,  35  Pa.  Super.  436,  1908;  (h2)  order  taxing 
costs:  Kelley's  Impeachment,  17  Pa.  Super.  344, 1901;  Trimble  v.  Twp., 
42  Pa.  Super.  593,  1910;  (12)  discharge  under  insolvent  laws:  McDon- 
ough's  Case,  37  Pa.  275,  1860;  Owen's  Pet.,  140  Pa,  565,  1891;  (J2) 
order  refusing  to  moderate  or  remit  forfeited  rcognizance:  Bross  v. 
Com.,  71  Pa.  262,  1872;  Com.  v.  Oblender,  135  Pa.  536,  1890;  Com.  v. 
Bird,  144  Pa.  194,  1891;  Com.  v.  Meeser,  19  Pa.  Super.  1,  1902;  (k2) 
order  in  habeas   corpus  proceedings:    Com.   v.   McDougall,   203   Pa. 
291,  1902;  Com.  v.  Strickland,  27  Pa.  Super.  309,  1905;  Com.  v.  Supt. 
County  Prison,  33  Pa.  Super.  594,  1907;  Com.  v.  Hare,  36  Pa.  Super. 
125,  1908;  (12)  order  in  adoption  proceedings:  Vandermis  v.  Gilbert, 
10  Pa.  Super.  570,  1899;  (m2)  inquisition  of  lunacy:  Weaver's  Case, 
116,  Pa.  225,  1887;  Com.  v.  Harrold,  204  Pa.  154,  1902;  (n2)  order  of 
court  setting  aside  or  refusing  to  set  aside  sheriff's  sale:  Laid's  Ap., 
2    Pa.    Super.    300,    1896;    Kutz's    Ap.,    4    Pa.    Super.    292,    1897; 
(o2)  possession  proceedings  before  alderman  or  justice  of  peace  by 
purchasers  at  sheriff's  sale:  Lenox  v.  McCall,  3  S.  &  R.  95, 1817;  Bauer 
v.  Angeny,  100  Pa.  429,  1882;  (p2)  refusal  of  common  pleas  to  allow 
appeal  from  justice:  Thompson  v.  Preston,  5  Pa.  Super.  154,  158,  159, 
1897;  (q2)  judgment  of  common  pleas  on  certiorari  reversing  judgment 
of  justice  in  action  of  trespass :  Minogue  v.  Boro.,  27  Pa.  Super.  506, 
1905;  Yost  v.  Yost,  38  Pa.  Super.  464,  1909;  (r2)  proceedings  for  con- 
tempt: HummelPs  Case,  9  Watts  416,  1840;  Com.  v.  Newton,  2  Phila. 
262, 1856:  (s2)  application  for  charter  or  amendment  to  charter:  First 
Presbyterian  Church,  107  Pa.  543,  1884;  Vaux's  Ap.,  109,  Pa.  497, 
1885;  Grand  Lodge  Application,  110  Pa.  613,  1885;  African  M.  E. 
Union  Church,  28  Pa.  Super.  193, 1905 ;  Phila.  Lying-in-Charity  v.  Hos- 
pital, 29  Pa.  Super.  420, 1905;  (t2)  contested  election  proceedings:  Wal- 

256 


MODES  OF  REVIEW. 


§182]  Certiorari  §  182  (4)  (t2)-(z2) 

lington  v.  Kneass,  15  Pa.  1851;  Chase  v.  Miller,  41  Pa.  403,  1862; 
Election  Cases,  65  Pa.  20,  1870;  Carpenter's  Ap.,  11  W.  N.  C.  162, 
1882;  Moock  v.  Conrad,  155  Pa.  586, 1893;  see  also  (f)  and  (g),  above; 
(u2)  proceedings  on  report  of  county  auditors:  Berks  Co.  v.  Linder- 
man,  30  Pa.  Super.  119,  1906;  (v2)  order  removing  school  directors: 
Slippery  Rock  Twp.  Dist.,  222  Pa.  538,  1909;  (w2)  review  of  proceed- 
ings under  Act  May  2,  1899,  P.  L.  184,  3  Purd.  2516,  pi.  1,  relating  to 
mercantile  taxes:  Pittsburg  Supply  Co.  Tax,  38  Pa.  Super.  121,  1909; 
(x2)  order  in  habeas  corpus  relating  to  custody  of  child:  Com.  v. 
Maurer,  42  Pa.  Super.  170,  1910;  (y2)  order  declaring  wife  feme  sole 
trader:  Coles 's  Case,  230  Pa.  162,  1911;  (z2)  summary  proceedings  be- 
fore justice  relating  to  trespass  on  posted  land:  Com.  v.  Lay  ton,  45 
Pa.  Super.  582, 1911;  Com.  v.  Price,  45  Pa.  Super.  643,  1911. 


257 
17 


ASSIGNMENTS  OF  ERROR. 


§  183  Filing  Assignments  [Chap.  12, 

CHAPTER  XII. 

ASSIGNMENTS   OF   ERROR. 

§183.     Specification  of  Errors — Filing — Non-Pros — Quashing. 
§184.     Equity  Cases. 

(A)  Question  of  Remedy  at  Law — Waiver. 

(B)  Exceptions  Necessary. 

§185.     Each  Error  Must  be  Specified  Singly — Exception  in  Case  of 
Special  Verdict. 

§186.     Charge,  Points  for  Charge  and  Answers  to  be  Quoted. 
§187.    Admission  or  Rejection  of  Evidence. 
§188.    Appeals  from  Superior  Court. 

§  183.  Specification  of  Errors — Filing — Non-Pros — 
Quashing.  Counsel  for  the  appellant  shall,  on  or  before 
the  return  day  of  the  term  at  which  the  case  is  upon  the 
list  for  argument,  specify  in  writing  the  particular  errors 
which  he  assigns,  and  file  the  same  in  the  prothonotary's 
office;  and,  on  failure  so  to  do,  the  court  may  non-pros  the 
writ.  Supreme  Court  Rule  14;  Superior  Court  Rule  8. 

(1)  Filing  Assignments.    The  assignments  may  be  printed  before 
filing,  but  this  is  not  absolutely  required.     The  usual  practice  is  to 
have  them  typewritten;  but  writing  assignments  in  long  hand  is  suf- 
ficient compliance  with  the  rules  of  court.    They  should  also  be  printed 
in  their  appropriate  place  in  appellant's  paper-book.    See  Chap.  XIII, 
§190  et  seq. 

(2)  Assignments  Mnst  be  Complete,    (a)  Assignments  of  error  are 
essential  part  of  pleadings,  and  each  should  be  complete  in  itself  giv- 
ing the  necessary  facts  without  reference  to  any  part  of  the  record 

258 


ASSIGNMENTS  OF  ERROR. 


§§  183-8]  Must  be  Complete  §  183  (2)  (a)-(i) 

which  is  remitted  after  appeal :  Burkholder  v.  Stahl,  58  Pa.  371,  1869 ; 
Armstrong's  Ap.,  68  Pa.  409,  1871;  Culin  v.  Glass  Works,  108  Pa.  220, 
1885;  Landis  v.  Evans,  113  Pa.  332,  1886;  Battles  v.  Sliney,  126  Pa. 
460,  1889 ;  Irvin  v.  Kutruff,  152  Pa.  609, 1893 ;  Com.  v.  Werntz,  161  Pa. 
591,  1894;  Cessna's  Est.,  192  Pa.  14, 1899;  Rodovinsky  v.  Knitting  Co., 
5  Pa.  Super.  636, 1897;  Wabash  Ave.,  26  Pa.  Super.  305, 1904;  Vander- 
slice  v.  Donner,  26  Pa.  Super.  319,  1904;  International  Trust  Co.  v. 
Kleber,  29  Pa,  Super.  200,  1905;  Com.  v.  Mackey,  34  Pa.  Super.  1, 
1907;  North  Mountain  Water  Co.  v.  Troxell,  223  Pa.  315,  1909.  For 
other  cases,  see  §185,  note  (2),  and  §187,  notes,  below;  (b)  they 
should  state  grounds  on  which  appellant  complains  of  action  of  lower 
court:  Com.  v.  Shoener,  25  Pa.  Super.  526,  1904;  International  Trust 
Co.  v.  Kleber,  29  Pa.  Super.  200, 1905;  (c)  and  should  include  all  facts 
or  matters  which  form  basis  of  alleged  error :  Plank-Road  Co.  v.  Rine- 
man,  20  Pa.  99,  1852;  Pottstown  Boro.,  117  Pa.  538,  1888;  Sweeney  v. 
Oil  &  Gas  Co.,  130  Pa.  193,  1889:  Harris  v.  R.  R.,  156  Pa.  252,  1893; 
Norristown  Boro.  v.  Fornance,  1  Pa.  Super.  129,  1896;  Coverdill  v. 
Heath,  12  Pa.  Super.  15,  1899;  see  also  (a)  this  note;  (d)  including 
rulings  and  evidence  thereon:  see  cases  §187,  note  (1),  below;  (e) 
points  and  answers  and  charge  of  court ;  see  cases  §186,  note  (1) ; 
(f)  orders,  rulings  and  decrees  of  court:  Benzinger  Twp.  Road,  135 
Pa.  176,  1890;  Com.  v.  Beale,  19  Pa.  Super.  434,  1902;  Ramschuse's 
Est.,  21  Pa.  Super.  497,  1902;  Wymard  v.  Deeds,  21  Pa.  Super.  332, 
1903 ;  Oakland  Boro.  v.  Boyden,  22  Pa.  Super.  278, 1903 ;  Com.  v.  Pow- 
ell, 23  Pa.  Super.  370,  1903;  O'Donnell  v.  Clements,  23  Pa.  Super. 
447,  1903;  Godshalk's  Est.,  24  Pa.  Super.  410,  1904;  Barr  Twp.  Road, 
29  Pa.  Super.  203,  1905;  Arnold  v.  Plow  Co.,  212  Pa.  303,  1905;  Mc- 
Conahy  v.  R.  R.,  31  Pa.  Super.  215,  1906;  Com.  v.  Yocum,  37  Pa. 
Super.  237,  1908;  Sipe  v.  R.  R.,  222  Pa.  400,  1909;  North  Mouutain 
Water  Co.  v.  Troxell,  223  Pa.  315,  1909;  Conneaut  Lake  Ice  Co.  v. 
Quigley,  225  Pa.  605,  1909;  Riesmeyer  v.  O'Day,  45  Pa.  Super.  67, 
1910;  see  also  cases  §186,  note  (1);  (g)  documents:  see  cases  §187, 
note  (2),  below;  (h)  and  specification  assigning  as  error  a  violation 
of  court  rules,  should  make  it  clearly  appear  that  there  was  such  vio- 
lation: Morrison  v.  Nevin,  130  Pa.  344,  1890;  (i)  assignment  to 
granting  of  injunction  should  incorporate  decree  itself:  McConahy  v. 
R.  R.,  31  Pa.  Super.  215,  1906 ;  North  Mountain  Water  Co.  v.  Troxell, 
223  Pa.  315,  1909;  (see  also  (f),  this  note);  (j)  assignment  should 

259 


ASSIGNMENTS  OF  ERROR. 


§  183  (2)  (j)-(3)  (a)  Must  be  Complete  [Chap.  12, 

refer  to  reservation  alleged  to  be  erroneous:  Wolf  v.  Jacobs,  10  Pa. 
Super.  54,  1899 ;  (k)  where  judgment  has  been  entered  n.  o.  v.  on  point 
reserved,  it  is  not  necessarj',  though  good  practice,  to  set  out  point 
reserved  in  assignments  of  error:  McBeth  v.  Newlin,  15  W.  N.  C.  129, 
1884;  (1)  assignments  should  contain  not  only  question  excepted  to 
but  also  answer  to  question:  see  cases  §187,  note  (1)  (m)  it  is  not 
enough  to  show  that  improper  question  was  asked;  an  injurious  an- 
swer must  be  shown:  Com.  v.  Kay,  14  Pa.  Super.  376,  1900;  see  §187, 
note  (1)  (a)  and  (b) ;  (n)  assignment  should  quote  full  substance  of 
bill  of  exceptions :  see  §187,  note  (4)  (f ) ;  (o)  and  show  that  an  ex- 
ception was  taken  and  sealed  to  admission  or  rejection  of  testimony: 
see  cases  §187,  note  (4)  (a) ;  (p)  assignment  to  alleged  improper  re- 
marks of  counsel  must  set  forth  such  remarks  and  action  of  court 
thereon:  Com.  v.  Kloss,  38  Pa.  Super.  307,  1909;  see  §228,  note  (16), 
for  mode  of  making  such  remarks  part  of  record;  (q)  errors  not  as- 
signed will  be  considered  as  waived:  Daniel  v.  Daniel,  23  Pa.  198, 
1854;  Bull's  Ap.,  24  Pa.  286,  1855;  Thompson  v.  McConnell,  1  Grant 
396,  1856;  McCarthy  v.  Ry.,  211  Pa.  193,  1905;  Beaver  Boro.  v.  R.  R., 
217  Pa.  280,  1907;  (r)  but  jurisdictional  and  other  fundamental  er- 
rors may  be  considered  without  assignment  or  filing  if  apparent  on 
face  of  record :  Anderson  v.  Long,  10  S.  &  R.  55,  1823 ;  Rodovinsky  v. 
Knitting  Co.,  5  Pa.  Super.  636,  1897;  Canole  v.  Allen,  222  Pa.  156, 
1908;  see  §228,  note  (11)  (e)  and  (f) ;  (s)  assignment  that  court  erred 
in  submitting  or  refusing  to  submit  case  to  jury  must  be  based  on 
binding  instructions  or  request  for  such  instructions :  Readdy  v.  Sha- 
mokin  Boro.,  137  Pa.  98,  1890;  Wray  v.  Spence,  145  Pa.  399,  1891; 
Kitchen  v.  McCloskey,  150  Pa.  376,  1892 ;  Kepler  v.  Lumber  Co.,  209 
Pa.  244,  1904;  (t)  but  error  may  be  assigned,  though  no  request  for 
binding  instruction  was  made,  where  there  is  no  evidence  to  justify 
verdict:  Hennessy  v.  Anstock,  19  Pa.  Super.  644,  1902;  (u)  assign- 
ment to  entry  of  judgment  n.  o.  v.  is  insufficient  where  motion,  order 
of  court  and  exception  are  not  printed  and  there  is  no  reference  to 
place  where  they  may  be  found :  Girard  Tr.  Co.  v.  Boyd,  45  Pa.  Super. 
255, 1911;  cf.  (k),  above,  this  note. 

(3)  What  May  be  Assigned  as  Error,  (a)  In  general,  error  may 
be  assigned  to  any  matter  occurring  during  trial  to  which  exceptions 
have  been  duly  taken  and  which  is  made  to  appear  on  the  record.  As 

260 


ASSIGNMENTS  OF  ERROR. 


§§  183-8]  What  May  be  Assigned  §  183  (3)  (a)-(4)  (a) 

to  what  constitutes  the  record,  see  §§146-162,  and  as  to  necessity  for 
exceptions,  see  §161,  and  §228,  notes  (10)  and  (11),  below;  see  §228 
and  notes  for  general  scope  of  review;  (b)  error  may  also 
be  assigned  to  any  matter  which  would  have  been  available  on  gen- 
eral demurrer  or  in  arrest  of  judgment :  Northumberland  County  Bank 
v.  Eyer,  60  Pa.  436,  1869;  (c)  jurisdictional  or  other  like  fundamental 
errors  may  be  assigned  without  exception  having  been  taken:  Franks- 
town  Twp.  Road,  26  Pa.  472,  1856;  Little  Meadows  Boro.,  28  Pa.  256, 
1857;  Bean's  Road,  35  Pa.  280,  1860;  O'Hara  Twp.  Road,  152  Pa.  319, 
1893;  "William  Street,  13  Pa.  Super.  266,  1900;  Middletown  Road,  15 
Pa.  Super.  167, 1900;  see  also  §228,  note  (11),  (e)  and  (f) ;  (d)  refusal 
to  quash  indictment  may  be  assigned  for  error:  Com.  v.  Hall,  23  Pa. 
Super.  104,  1903;  Com.  v.  Edmiston,  30  Pa.  Super.  54,  1906;  (e)  but 
it  cannot  be  based  on  facts  outside  record  without  bill  of  exceptions: 
Com.  v.  Bradney,  126  Pa.  199,  1889;  Com.  v.  Mock,  23  Pa.  Super.  51, 
1903;  (f)  error  should  be  assigned  to  decree  of  court,  not  to  its  opin- 
ion, as  appellate  court  will  not  reverse  because  of  wrong  reason  given : 
Powell's  Est.,  138  Pa.  322,  1890;  Fullerton's  Est.,  146  Pa.  61,  1892; 
Johnston 's  Est.,  222  Pa.  514, 1909 ;  Seltzer  v.  Boyer,  224  Pa.  369,  1909 ; 
see  also  §228,  note  (20)  (u) ;  (g)  assignment  of  error  to  decree  ap- 
proving report  of  master  should  allege  error  in  action  of  court,  not  in 
action  of  master :  Warner  v.  McMullin,  131  Pa,  370,  1890 ;  (h)  refusal 
to  take  off  non-suit  may  be  assigned  for  error:  see  §82,  (1);  (i) 
also  discharge  of  motion  to  strike  off  refusal  to  grant  new  trial :  Senf t 
v.  Mcllvain,  43  Pa.  Super.  518,  523,  1910;  refusal  to  grant  new  trial, 
being  a  matter  of  discretion,  will  not  be  reviewed  except  in  clear  cases 
of  abuse  of  discretion:  see  §228,  notes  (9)  and  (24)  (p2). 

(4)  What  May  not  be  Assigned  as  Error,  (a)  Error  may  not  be 
assigned  to  matters  not  excepted  to  and  not  contained  in  record :  Car- 
lisle v.  Woods,  7  S.  &  R.  207,  1821;  Girts  v.  Com.,  22  Pa.  351,  1853; 
Rogers  v.  Whiteley,  38  Pa.  137,  1861 ;  Gamble  v.  Woods,  53  Pa.  158, 
1866;  Jones  v.  Dilworth,  63  Pa.  447,  1870;  Thirty-fourth  Street,  81 
Pa.  27,  1876;  Hamilton  Street,  148  Pa.  640,  1892;  Keller's  Private 
Road,  154  Pa.  547,  1893;  Harris  v.  R.  R.,  156  Pa.  252,  1893;  Com.  v. 
Smith,  2  Pa.  Super.  474,  1896 ;  Jefferson  Twp.  Road,  3  Pa.  Super.  467, 
1897;  Ross  Twp.  Road,  5  Pa.  Super.  85,  1897;  Littell  v.  Young,  5  Pa. 
Super.  205,  1897;  Com.  v.  Duff,  7  Pa.  Super.  415,  1898;  Doylestown 

261 


ASSIGNMENTS  OF  ERROR. 


§  183  (4)  (a)- (h)  What  May  Not  be  Assigned  [Chap.  12, 

Distil.  Co.  Case,  9  Pa.  Super.  96,  1898;  Corkery  v.  O'Neill,  9  Pa. 
Super.  335,  1899;  Troubat  Ave.,  10  Pa.  Super.  27,  1899;  Quinn's  Li- 
cense, 11  Pa.  Super.  554,  1899;  Springer  v.  Stiver,  16  Pa.  Super.  184, 
1901;  Com.  v.  Mock,  23  Pa.  Super.  51,  1903;  Welliver  v.  Canal  Co.,  23 
Pa.  Super.  79,  1903;  Kinney  v.  Burnhorn,  23  Pa.  Super.  583,  1903; 
Land  Title  &  Tr.  Co.  v.  Fulmer,  24  Pa.  Super.  260,  1904;  Phila.  v. 
Bilyeu,  36  Pa.  Super.  562,  1908 ;  International  Tr.  Co.  v.  Printz,  37  Pa. 
Super.  134, 1908;  Com.  v.  Wilkinsburg  Boro.,  37  Pa.  Super.  160,  1908; 
Thomas  v.  Borden,  222  Pa.  184,  1908;  Southwest  Pa.  Pipe  Co.  v.  Sand 
Co.,  43  Pa.  Super.  534, 1910;  see  also  §228,  note  (11) ;  (b)  assignment 
involving  question  not  raised  in  court  below  will  not  be  considered: 
Ross  Twp.  Road,  5  Pa.  Super.  85,  1897;  Com.  v.  Price,  15  Pa.  Super. 
342,  1900;  Ulysses  Elgin  Butter  Co.  v.  Ins.  Co.,  20  Pa.  Super.  384, 
1902;  Phila.  &  Trenton  R.  R.  v.  Ry.,  206  Pa.  343,  1903;  Bousquet's 
Est.,  206  Pa.  534,  1903;  Com.  v.  Schoen,  25  Pa.  Super.  211,  1904; 
Beaver  Boro.  v.  R.  R.,  217  Pa.  280,  1907;  Martin  v.  Strong,  35  Pa. 
Super.  635,  1908;  Chester  Co.  Bank  v.  Thomas,  220  Pa.  360,  1908; 
Lindsay  v.  Button,  227  Pa.  208,  1910;  Com.  v.  Sarver,  44  Pa.  Super. 
441,  1910;  Schellentrager  v.  O'Donnell,  44  Pa.  Super.  431,  1910;  Bel- 
ber  Co.  v.  Silberblatt,  44  Pa.  Super.  32,  1910 ;  see  also  §228,  note  (15) ; 
(c)  nor  assignment  which  impeaches  record:  Doylestown  Distill.  Co. 
Case,  9  Pa.  Super.  96,  1898;  (d)  nor  mere  informality  in  framing 
issue:  Gates  v.  Johnston,  3  Pa.  52,  1846;  see  §228,  note  (13);  (e) 
error  cannot  be  assigned  to  what  was  not  said  to  jury,  unless  trial 
judge  has  been  specifically  requested  to  so  charge:  Burkholder  v. 
Stahl,  58  Pa.  371,  1869;  Com.  v.  Zappe,  153  Pa.  498,  1893;  Harding  v. 
Lloyd,  3  Pa.  Super.  293, 1897;  Lauer  v.  Yetzer,  3  Pa.  Super.  461,  1897; 
Crawford  v.  Wittish,  4  Pa.  Super.  585,  1897;  Fry  v.  Flick,  10  Pa. 
Super.  362,  1899 ;  Craig  v.  Boro.,  11  Pa.  Super.  490,  1899 ;  Mitchell  v. 
Jodon,  22  Pa.  Super.  304,  1902;  O'Donnell  v.  Gaffney,  22  Pa.  Super. 
316,  1903;  Kaufman  v.  R.  R.,  210  Pa.  440,  1904;  Murtland  v.  English, 
214  Pa.  325,  1906;  see  also  §228,  note  (19);  (f)  or  to  matters  wholly 
within  descretion  of  court  below,  unless  there  has  been  a  clear  abuse 
thereof:  Com.  v.  Bartilson,  85  Pa.  482,  1877;  see  §228,  note  (24) ;  (g) 
or  to  fact  that  charge  was  dictated  and  drawn  up  by  one  of  the  parties : 
Selin  v.  Snyder,  11  S.  &  R.  319,  1824;  (h)  or  where  court  stated  prin- 
ciple of  law  too  broadly:  Allen  v.  Rostain,  11  S.  &  R.  362,  1824;  Bar- 
ton v.  Glasgo,  12  S.  &  R.  149,  1824;  (i)  or  to  opinion  of  court  on 

262 


ASSIGNMENTS  OF  ERROR. 


§§  183-8]  Filing  Necessary  §  183  (4)  (i)-(5)  (e) 

t . __^ . 

weight  of  evidence,  given  at  request  of  party  complaining :  Williams  v. 
Carr,  1  Rawle,  420,  1829;  see  also  §228,  note  (21);  (j)  or  to  manner 
of  judge  in  delivering  charge :  Horton  v.  Coal  Co.,  2  Penny.  25,  1882 ; 
Irvin  v.  Kutruff,  152  Pa.  609, 1893 ;  (k)  or  to  refusal  to  grant  non-suit : 
Lehman  v.  Kellerman,  65  Pa.  489,  1870;  Spencer  v.  Conrad,  44  Pa. 
Super.  489, 1910;  see  other  cases  §82,  note  (1)  and  §228,  note  (24)  (12)  • 
(1)  or  refusal  to  grant  new  trial:  see  §228,  notes  (9)  and  (24)  (p2)  > 
(m)  or  mistake  of  court  as  to  evidence:  Dennis  v.  Alexander,  3  Pa. 
50,  1846 ;  (n)  or  neglect  of  judge  to  reduce  charge  to  writing :  Kerr  v. 
0  'Connor,  63  Pa.  341, 1870 ;  (o)  or  refusal  of  court  to  answer  question 
of  law  asked  by  juror :  Krider  v.  Lafferty,  1  Whar.  303,  1836 ;  (p)  or 
instruction  which  was  favorable  as  the  request:  Hubley  v.  Vanhorne, 
7  S.  &  R.  185,  1821;  (q)  or  error  to  which  appellant  contributed  or  for 
which  he  was  responsible:  Morris  v.  Buckley,  11  S.  &  R.  168,  1824; 
Pantall  v.  Iron  Co.,  204  Pa.  58,  1903;  (r)  assignment  to  allowance  of 
leading  questions  is  without  merit  where  appellant  printed  many  such 
questions  and  answers  to  which  no  objection  had  been  made:  MeCul- 
lough  v.  Seitz,  28  Pa.  Super.  458,  1905.  For  further  cases  on  the  sub- 
ject of  review  on  appeal,  see  §228  and  notes. 

(5)  Filing  Necessary,  (a)  Where  no  assignments  are  filed,  judg- 
ment will  be  affirmed:  Arthurs  v.  Swathers,  38  Pa.  40,  1861;  Landis 
v.  Maher,  1  W.  N.  C.  407,  1875;  Roller  v.  Meredith,  4  Pa.  Super.  461, 
1897;  Jones  v.  Weir,  217  Pa.  321,  1907;  (b)  or  appeal  quashed:  For- 
ney v.  County,  6  Pa.  Super.  397, 1898;  Jack  v.  Twyford,  10  Pa.  Super. 
475,  1899;  Halahan  v.  Cassidy,  12  Pa.  Super.  227,  1900;  Warwick 
Steel  Co.  v.  McKeag,  205  Pa.  490,  1903;  Com.  v.  Owen,  32  Pa.  Super. 
420,  1907;  Hughes  v.  Cooper,  42  Pa.  Super.  594,  1910;  (c)  or  non-suit 
entered:  Halahan  v.  Cassidy,  12  Pa.  Super.  227,  1900;  (d)  on  appeal 
from  decree  in  equity,  assignments  must  be  filed,  notwithstanding 
statement  of  errors  has  been  filed  in  court  below,  under  Equity  Rule 
92:  Croasdale  v.  Von  Boyneburgk,  206  Pa.  15,  1903;  Jones  v.  Weir, 
217,  Pa.  321, 1907;  see  §184,  note  (1) ;  (e)  but  jurisdictional  and  other 
fundamental  errors  may  be  considered  without  assignment  or  filing,  if 
apparent  on  face  of  record:  Anderson  v.  Long,  10  S.  &  R.  55,  1823; 
Rodovinsky  v.  Knitting  Co.,  5  Pa.  Super.  636,  1897;  Canole  v.  Allen, 
222  Pa.  156,  1908;  see  also  §228,  note  (11)  (e) ;  (f)  failure  to  file  is 
not  cured  by  printing  in  paper  book  what  purports  to  be  an  assign- 

263 


ASSIGNMENTS  OF  ERROR. 


§  183  (5)  (f)-§  184          Time   of    Filing — Equity    Cases  [Chap.  12, 

merit:  Lowenstein  v.  Bache,  37  Pa.  Super.  420,  1908;  (g)  when  filed, 
assignments  constitute  declaration  of  appellant  and  specify  errors  al- 
leged to  have  been  committed  by  lower  court :  Rodovinsky  v.  Knitting 
Co.,  5  Pa.  Super.  639,  1897. 

(6)  Time  of  filing,      (a)    Appeal  will  be  quashed  where   assign- 
ments are  not  filed  within  time  provided  in  rules:  Com.  v.  Owen,  32 
Pa.  Super.  420, 1907;  (b)  but  an  assignment  of  error  has  been  permit- 
ted to  be  filed  on  argument  of  case  in  Supreme  Court:  Mathews  v. 
Sharp,  99  Pa.  560,  1882;  Janney  v.  Howard,  150  Pa.  339,  1892;  Zim- 
merman v.  Camp,  155  Pa.  152,  1893;  (c)  but  new  error  not  affecting 
merits  cannot  be  assigned  at  hearing:  Shenango  Twp.  v.  Wayne  Twp., 
94  Pa.  184,  1859;  (d)  where  assignment  of  error  to  decree  of  orphans' 
court  does  not  recite  decree  in  so  many  words  but  only  opinion  of 
court  allowing  decree,  second  assignment  of  error  in  proper  form  and 
reciting  decree,  if  promptly  printed  in  appellant's  paper-book  and 
presented  at  argument,  will  be  allowed  to  be  filed  as  in  nature  of 
amendment  to  original  assignment:  Pfoutz's  Case,  40  Pa.  Super.  130, 
1909. 

(7)  Plea  in  Nullo  est  Erratum.    This  plea  is  supposed  to  be  entered 
by  the  prothonotary. 

§184.  (A)  Equity  Cases — Question  of  Remedy  at  Law 
— Waiver.  If  upon  an  appeal  after  a  decision  on  the  merits, 
the  question  whether  the  suit  should  have  been  brought 
at  law  is  not  specifically  raised  by  the  defendant's  assign- 
ments of  error,  the  question  shall  be  deemed  to  have  been 
waived,  and  the  decree  below  shall  not  be  reversed  or  set 
aside  because  the  suit  should  have  been  brought  at  law. 
Act  June  7,  1907,  §3,  P.  L.  440,  5  Purd.  5465,  pi.  3. 

(B)  Exceptions  Necessary.     Upon  appeal  to  the 

Supreme  or  Superior  Court  such  matters  only  as  have  been 
so  excepted  to  and  finally  passed  upon  by  the  court  shall 
be  assignable  for  error.  Supreme  Court  Equity  Rule  67. 

264 


ASSIGNMENTS  OF  ERROR. 


§§  183-8]     General  Assignments  not  Allowed       §  184  (!)-§  185  (1)  (a)-(b) 

(1)  Filing  Statement  of  Errors  in  Court  Below.    Supreme  Court 
Equity  Rule  92,  which  required  appellant  to  file  in  the  lower  court 
with  notice  of  his  appeal,  a  brief  statement  of  the  errors  which  he 
alleged,  has  been  abrogated  by  Supreme  Court  by  Order  July  6,  1911. 

(2)  Exceptions.    Rule  67  is  mandatory:  Beatty  v.  Harris,  205  Pa. 
377,  1903;  Swope  v.  Snyder,  209  Pa.  352,  1904;  Kenworthy  v.  Trust 
Co.,  218,  Pa.  286, 1907;  United  E.  L.  Co.  v.  Pittsburg,  230  Pa.  65, 1911. 

(3)  What  Assignments  Should  Contain.       Assignments  are  de- 
fective which  allege  error  in  sustaining  bill  without  setting  forth 
final  decree;  which  allege  error  in  dismissing  exceptions  without  set- 
ting forth  exceptions;  or  which  allege  error  in  refusing  to  consider 
requests  for  findings  of  fact  without  setting  forth  requests:  Yerger 
v.  Hunn,  231  Pa,  245,  1911.    For  other  cases  relating  to  assignments 
of  error,  see  appropriate  headings  in  this  chapter. 

§  185.  —Each  Error  Must  be  Specified  Particularly  and 
by  itself — Waiver.  Each  error  relied  on  must  be  specified 
particularly  and  by  itself.  If  any  specification  embrace 
more  than  one  point,  or  refer  to  more  than  one  bill  of  ex- 
ceptions, or  raise  more  than  one  distinct  question,  it  shall 
be  considered  a  waiver  of  all  the  errors  so  alleged.  Su- 
preme Court  Rule  26;  Superior  Court  Rule  14. 

(1)  General  Assignments  not  Allowed,  (a)  General  assignments 
are  bad;  for  example,  assignment  of  entire  decree  which  is  complex 
and  separable :  Haag  v.  Knights  of  Friendship,  7  Pa.  Super.  425,  1898 ; 
(b)  or  entire  charge,  or  answers  to  points,  without  pointing  out  spe- 
cific errors:  Zerbe  v.  Miller,  16  Pa.  488,  1851;  Snyder  v.  May,  19  Pa. 
235,  1835;  Clark  v.  Smith,  25  Pa.  137,  1855;  Com.  v.  Orr,  138  Pa.  276, 
1890;  Voskamp  v.  Connor,  173  Pa.  109,  1896;  Com.  v.  Swayne,  1  Pa. 
Superior  Court  Reports,  547,  1896;  Rodovinsky  v.  Knitting  Co.,  5  Pa. 
Super.  636,  1897;  Taylor  v.  Sattler,  6  Pa.  Super.  229,  1897;  Drenning 
v.  Wesley,  189  Pa,  160,  1899;  Card  v.  Columbia  Twp.,  191  Pa.  254, 
1899;  Fry  v.  Flick,  10  Pa.  Super.  362,  1899;  Com.  v.  Devine,  18  Pa. 
Super.  431,  1901;  Fitzpatrick  v.  Traction  Co.,  206  Pa.  335,  1903;  Wood 
v.  Mfg.  Co.,  22  Pa.  Super.  138,  1903;  Kaufman  v.  R.  R.,  210  Pa.  440, 

265 


ASSIGNMENTS  OF  ERROR. 


§  185  (1)  (c)-(r)  General  Assignments  not  Allowed  [Chap.  12, 

1904;  Wirsing  v.  Smith,  222  Pa.  8,  1908;  (c)  general  assignment  that 
charge  as  a  whole  was  inadequate  and  misleading  will  be  sustained 
only  where  court  is  clearly  convinced  jury  were  misled:  Blank  v. 
Barnhart,  17  Pa.  Super.  214,  1901 ;  Com.  v.  Wertheimer,  23  Pa.  Super. 
192,  1903;  Com.  v.  Wasson,  42  Pa.  Super.  38,  1910;  (d)  and  in  such 
cases  charge  should  be  set  out  in  full:  Udderzook  v.  Harris,  140  Pa. 
236,  1891;  Mitchell  v.  Edeburn,  37  Pa.  Super.  223,  1908;  and  see  also 
§186,  note  (1)  (e)  and  (f) ;  (e)  refusing  to  charge  jury  as  requested  is 
too  general:  Ladley  v.  Express  Co.,  3  Pa.  Super.  149,  1896;  (f)  or  in 
submitting  case  to  jury  under  evidence:  Readdy  v.  Boro,  137  Pa.  98, 
1890;  Wray  v.  Spence,  145  Pa.  399,  1891;  Voskamp  v.  Connor,  173 
Pa.  109, 1896;  (g)  or  refusing  to  do  so:  Kitchen  v.  McCloskey,  150  Pa, 
376,  1892;  (h)  confirming  or  overruling  auditor's  report:  Bull's  Ap., 
24  Pa.  286,  1855;  Wolf  v.  Ferguson,  129  Pa.  272,  1889;  Trullinger  v. 
Charles,  129  Pa.  289,  1889;  Holton  v.  Ry.,  138  Pa.  Ill,  1890;  Second 
Nat.  Bank  v.  Coal  Co.,  140  Pa.  628,  1891;  Pottsville  v.  Ry.,  148  Pa. 
175,  1892;  Maurer's  Est.,  148  Pa.  272,  1892;  Graybill  v.  Deitrich,  32 
Pa.  Super.  482,  1907;  (i)  or  that  evidence  did  not  justify  verdict,  and 
verdict  was  against  the  law:  Scofield  v.  Ferrers,  46  Pa.  438,  1864; 
Com.  v.  Zappe,  153  Pa.  498,  1893;  McBride  v.  Rinard,  172  Pa.  542, 
1896;  (j)  where  statement  set  out  good  cause  of  action  and  there  was 
no  reservation  of  question  of  law,  that  court  erred  in  entering  judg- 
ment on  verdict :  Wills  v.  Hardcastle,  19  Pa.  Super.  525,  1902 ;  Hentz- 
ler  v.  Weniger,  32  Pa.  Super.  164, 1906;  (k)  that  orphans'  court  erred 
in  holding  that  claim  was  properly  proved,  without  specifying  par- 
ticulars: Ramschasel's  Est.,  21  Pa.  Super.  497,  1902;  (1)  or  that 
judgment  was  entered  on  all  the  counts,  some  of  which  were  bad : 
McKelvy  v.  Wilson,  9  Pa.  183,  1848;  (m)  that  court  erred  in  over- 
ruling motion  to  quash  indictment :  Com.  v.  Stambaugh,  22  Pa.  Super. 
386,  1903;  (n)  or  in  not  arresting  judgment  because  of  insufficiency 
of  indictment:  Weaver  v.  Com.,  29  Pa.  445,  1857;  (o)  in  dismissing 
exceptions  and  confirming  adjudication  without  more:  Godshalk's 
Est.,  24  Pa.  Super.  410,  1904;  Graybill  v.  Deitrich,  32  Pa.  Super.  482, 
1907;  (p)  or  in  dismissing  exceptions  to  report  of  viewers,  without 
more:  Wabash  Ave.,  26  Pa.  Super.  305,  1904;  Barr  Twp.  Road,  29  Pa. 
Super.  203, 1905;  (q)  or  in  court's  opinion  on  rule  for  new  trial:  Gal- 
lagher v.  Davis,  179  Pa.  504, 1897;  (r)  or  in  opinion  of  orphans'  court : 
Johnston's  Est.,  222  Pa.  514,  1908;  (s)  assignments  consisting  of  gen- 

266 


ASSIGNMENTS  OF  ERROR. 


§§183-8]  Must  Contain  Only  One  Point      §  185  ( 1)  (s)-(3)  (a) 

eral  questions  will  not  be  considered:  Com.  v.  Mackey,  34  Pa.  Super. 
1,  1907;  (t)  they  should  be  confined  to  substantial  and  material  ques- 
tions :  Cooper  v.  Const.  Co.,  231  Pa.  557,  1911. 

(2)  Errors  Must  be  Specified  Separately,    (a)  Eaeh  error  must  be 
specified  separately  so  as  to  present  a  single  question  for  review,  and 
without  reference  to  other  parts  of  record:  Sanders  v.  Wagonseller, 
19  Pa.  248,  1852;  Reimer  v.  Stuber,  20  Pa.  458,  1853;  Good  Intent  Co. 
v.  Hartzell,  22  Pa.  277,  1853;  Bull's  Ap.,  24  Pa.  286,  1855;  Schwenk 
v.  County,  6  Pa.  281,  1856;  Franklin  Ins.  Co.  v.  Updegraff,  43  Pa. 
350,  1862;  Armstrong's  Ap.,  68  Pa.  409,  1871;  West  Hickory  Mining 
Asso.  v.  Reed,  80  Pa.  38,  1876;  Yungfleisch's  Ap.,  1  Walk.  125,  1879; 
First  Nat.  Bank  v.  Bank,  4  Sad.  297,  1886;  Voskamp  v.  Connor,  173 
Pa.  109,  1896;  Fitzpatrick  v.  Engard,  175  Pa.  393,  1896;  Gallagher  v. 
Davis,  179  Pa.  504,  1897;  Cessna's  Esta.,  192  Pa.  14,  1899;  Galloway's 
Est.,  5  Pa,  Super.  272,  1897;  Rodovinsky  v.  Knitting  Co.,  5  Pa.  Super. 
636,  1897;  Com.  v.  Light,  10  Pa.  Super.  66,  1899;  Harshman  v.  Dunbar 
Twp.,  11  Pa.  Super.  638, 1899;  George  v.  Conneaut  Twp.,  18  Pa.  Super. 
47,  1901;  Hennessy  v.  Anstock,  19  Pa.  Super.  644,  1902;  Barr  Twp. 
Road,  29  Pa.  Super.  203,  1905;  McConahy  v.  R.  R.,  31  Pa.  Super.  215, 
1906;  Jones  v.  Wier,  217  Pa.  321,  1907;  Haley  v.  Chemical  Co.,  224 
Pa.  316,  1909;  Com.  v.  Dehle,  42  Pa.  Super.  300,  1910;  Sebring  v. 
Weaver,  42  Pa.  Super.  588,  1910;   (b)  dividing  assignment  into  sep- 
arate clauses  is  not  good  practice :  Kemmerer  v.  Tool,  81  Pa.  467, 1876 ; 
(c)  it  is  improper  practice  to  raise  same  question  by  different  assign- 
ments of  error:  Seifred  v.  R.  R.,  206  Pa.  390,  1903;  Cooper  v.  Const. 
Co.,  231  Pa.  557,  1911;   (d)  assignment  that  court  erred  in  refusing 
new  trial  for  four  specific  reasons  stated  is  good,  as  it  assigns  but  a 
single  error:  Mix  v.  North  American  Co.,  209  Pa.,  636,  1904;  (e)  dis- 
missal of  each  exception  to  auditor's  report  must  be  made  the  subject 
of  separate  assignment  of  error :  First  Nat.  Bank  v.  Bank,  4  Sad.  297, 
1886. 

(3)  Must  not  Contain  More  than  One  Point,     (a)   Assignments 
may  not  contain  more  than  one  point:  Reimer  v.  Stuber,  20  Pa.  458, 
1853 ;  Good  Intent  Co.  v.  Hartzell,  22  Pa.  277, 1853 ;  Schwenk  v.  County, 
26  Pa.  281, 1856;  Cobb  v.  Stephens,  2  Phila.  150, 1857;  Bartolet's  Ap., 
1  Walk.  77,  1880;  Simpson  v.  Marshall,  31  P.  L.  J.  (0.  S.),  337,  1884; 
Kurtz  v.  Haines,  2  Mona.  328,  1888;  Kelly  v.  Bennett,  132  Pa.  218, 

267 


ASSIGNMENTS  OF  ERROR. 


§  185  (3)  (a)-(5)  (a)        Must   Contain   Only   one   Point  [Chap.  12, 

1890;  Borland  v.  Meurer,  139  Pa.  513,  1891;  Maurer's  Ap.,  148  Pa. 
272,  1892;  Irvin  v.  Kutruff,  152  Pa.  609,  1893;  Crawford  v.  McKin- 
ney,  165  Pa.  605,  1895;  Davidson  v.  Traction  Co.,  4  Pa.  Super.  86, 
1897;  Galloway's  Est.,  5  Pa.  Super.  272,  1897;  Davis  v.  Ins.  Co.,  5  Pa. 
Super.  506,  1897;  Haag  v.  Knights  of  Friendship,  7  Pa.  Super.  425, 
1898;  Harshman  v.  Dunbar  Twp.,  11  Pa.  Super.  638,  1898;  Sloan 
v.  James,  13  Pa.  Super.  399,  1900;  Wojciechowski  v.  Johnowski,  16 
Pa.  Super.  444,  1901 ;  McGeary  v.  Raymond,  17  Pa.  Super.  308,  1901 ; 
George  v.  Conneaut  Twp.,  18  Pa.  Super.  47,  1901;  Ruddy  v.  Repp,  19 
Pa.  Super.  437,  1902;  Hennessy  v.  Anstock,  19  Pa.  Super.  644,  1902; 
Loeweke  v.  B.  &  L.  Asso.,  21  Pa.  Super.  389,  1902;  Kase  v.  Burnham, 
206,  330,  1903;  Godshalk's  Est.,  24  Pa.  Super.  410,  1904;  Dotterer  v. 
Scott,  29  Pa.  Super.  553,  1905 ;  Reading  Co.  v.  Seip,  30  Pa.  Super.  330, 
1906;  Com.  v.  Campbell,  31  Pa.  Super.  9,  1906;  Brown  v.  Water  Co., 
213  Pa.  440,  1906;  Jones  v.  Weir,  217  Pa.  321,  1907;  Com.  v.  Vol- 
quarts,  36  Pa.  Super.  199,  1908;  Ripka  v.  Ins.  Co.,  36  Pa.  Super.  517, 
1908;  Com.  v.  Yocum,  37  Pa.  Super.  237,  1908;  Catlin  v.  Coal  &  Iron 
Co.,  225  Pa.  262,  1909 ;  Com.  v.  Dehle,  42  Pa.  Super.  300,  1910 ;  Jones 
v.  Aronson,  45  Pa.  Super.  148,  1911 ;  Cayuga  B.  &  L.  Asso.  v.  MacMul- 
len,  46  Pa.  Super.  94,  1911. 

(4)  Reference  to  More  than  One  Bill  of  Exception  not  Allowed. 

(a)  Assignment  is  defective  which  refers  to  more  than  one  bill  of  ex- 
ception :  Reimer  v.  Stuber,  20  Pa.  458,  1853 ;  Good  Intent  Co.  v.  Hart- 
zell,  22  Pa.  277,  1853;  Schwenk  v.  County,  26  Pa.  281,  1856;  Haag 
v.  Knights  of  Friendship,  7  Pa.  Super.  425,  1898;  Wojciechowski  v. 
Johnkowski,  16  Pa.  Super.  444,  1901;  Swayne  v.  Swayne,  19  Pa. 
Super.  160,  1902;  Com.  v.  Campbell,  31  Pa.  Super.  9,  1906;  Vivian  v. 
Challenger,  45  Pa.  Super.  1,  1910;  (b)  even  though  offers  were  simi- 
lar: Swayne  v.  Swayne,  19  Pa.  Super.  160,  1902;  Chestnut  Hill  Road 
v.  County,  228  Pa.  1, 1910;  Sebring  v.  Weaver,  42  Pa.  Super,  588,  1910. 

(5)  Single  Question  Required,     (a)  Assignment  is  defective  which 
raises  more  than  one  question :  Reimer  v.  Stuber,  20  Pa.  458,  1853 ; 
Schwenk  v.  County,  26  Pa,  281,  1856;  Galloway's  Est.,  5  Pa.  Super. 
272,  1897;  Haag  v.  Knights  of  Friendship,  7  Pa.  Super.  425,  1898; 
Com.  v.  Light,  10  Pa.  Super.  66,  1899;  George  v.  Conneaut  Twp.,  18 
Pa.  Super.  47,  1901 ;  Ruddy  v.  Repp,  19  Pa.  Super.  437,  1902 ;  Loeweke 
v.  B.  &  L.  Asso.,  21  Pa.  Super.  389,  1902;  Erie  v.  Grant,  24  Pa.  Super. 

268 


ASSIGNMENTS  OF  ERROR. 


§§183-8]  Quoting  Charge,  Points,  etc.  §186(1)  (a) 

109,  1904;  Haly  v.  Chemical  Co.,  224  Pa.  316,  1909;  Com.  v.  Dehle,  42 
Pa.  Super.  300,  1910;  Sebring  v.  Weaver,  42  Pa.  Super.  588,  1910; 
(b)  assignment  cannot  be  divided  and  treated  as  good  in  part  and  bad 
in  part;  if  not  sustained  as  whole,  it  must  be  overruled.  For  this 
reason,  if  for  no  other,  it  should  .present  but  one  distinct  question : 
Hennessy  v.  Anstock,  19  Pa.  Super.  644,  1902.  Cf.  §185,  note  (2)  (d). 

§  1 86.  —Charge,  Points  for  Charge,  and  Answers  to  be 
Quoted.  When  the  error  assigned  is  to  the  charge  of  the 
court,  or  to  answer  to  points,  the  part  of  the  charge,  or  the 
points  and  answers  referred  to,  must  be  quoted  ipsissimis 
verbis  in  the  specification,  and  the  parts  of  the  charge  as- 
signed as  error  shall  be  enclosed  in  brackets  in  the  printed 
charge  with  the  number  of  the  assignment  noted.  Supreme 
Court  Rule  27;  Superior  Court  Rule  15. 

(1)  Quoting  Charge,  etc.  (a)  Charge,  points  and  answers  must  be 
quoted  totidem  verbis  in  the  specification :  Criswell  v.  Altemus,  20  Pa. 
124,  1852;  Brown  v.  Brooks,  25  Pa.  210, 1855;  Hutchinson  v.  Campbell, 
25  Pa.  273,  1855;  Arthurs  v.  Swathers,  38  Pa.  40,  1861;  Burkholder  v. 
Stahl,  58  Pa.  371,  1869;  Sorg  v.  Congregation,  63  Pa.  156,  1870;  Gil- 
more  v.  R.  R.,  104  Pa.  275, 1884;  Headley  v.  Renner,  129  Pa.  542, 1889; 
Aspell  v.  Smith,  134  Pa.  59,  1890;  McCord  v.  Durant,  134  Pa.  184, 
1890;  Readdy  v.  Boro.,  137  Pa.  92,  1890;  Long  v.  Milford  Twp.,  137 
Pa.  122,  1890;  Com.  v.  Orr,  138  Pa.  276,  1890;  Walton  v.  Hinnau,  146 
Pa.  396,  1892;  Hall  v.  Phillips,  164  Pa.  494,  1894;  Whitmire  v.  Mont- 
gomery, 165  Pa.  253,  1895;  Crawford  v.  McKinney,  165  Pa.  605,  1895; 
May  v.  Troutman,  4  Pa.  Super.  42, 1897;  Davis  v.  Ins.  Co.,  5  Pa.  Super. 
506,  1897;  McNulty  v.  R.  R.,  182  Pa.  479,  1897;  Lamb  v.  Leader,  6 
Pa.  Super.  50,  1897;  Com.  v.  Heidler,  191  Pa.  375,  1899;  Ewing  v. 
Cottman,  9  Pa.  Super.  444,  1899;  Blank  v.  Barnhart,  17  Pa.  Super. 
214,  1901;  Sailor  v.  Reamer,  20  Pa.  Super.  597,  1902;  Wymard  v. 
Deeds,  21  Pa.  Super.  332,  1902;  Com.  v.  Houghton,  22  Pa.  Super.  52, 
1903;  Mitchell  v.  Jodon,  22  Pa.  Super.  304,  1902;  Dotterer  v.  Scott, 
29  Pa.  Super.  553, 1905;  English  v.  Murtland,  214  Pa.  325, 1906;  Read- 
ing Co.  v.  Seip,  30  Pa.  Super.  330,  1906 ;  Mathushek  Piano  Co.  v.  Eng- 
berry,  30  Pa.  Super.  543,  1906;  Ludwig  Piano  Co.  v.  Browne,  33  Pa. 

269 


ASSIGNMENTS  OF  ERROR. 


§  186  (1)  (a)-(g)  Quoting  Charge,  etc.  [Chap.  12, 

Super.  81,  1907;  Boy  v.  Asso.,  218  Pa.  494,  1907;  Com.  v.  Volquarts, 
36  Pa.  Super.  190,  1908;  Patton  v.  Trust  County,  36  Pa.  Super.  296, 
1908;  Shannon  v.  Cohlhepp,  37  Pa.  Super.  241,  1908;  Haley  v.  Chem- 
ical Co.,  224  Pa.  316,  1909;  Simpson  v.  Carroll,  41  Pa.  Super.  343, 
1910;  Com.  v.  Dehle,  42  Pa.  Super ..366,  1910;  Lee  Co.  v.  Sherman,  43 
Pa.  Super.  557, 1910 ;  Com.  v.  Simon,  44  Pa.  Super.  538, 1910 ;  Com.  v. 
Stovas,  45  Pa.  Super.  43,  1910 ;  Morgan  v.  Gamble,  230  Pa.  165,  1911 ; 
(b)  assignments  to  action  or  opinion  of  court  without  setting  forth 
ruling  or  decree  is  error:  Twitchell's  Ap.,  4  W.  N.  C.  68,  1877;  Cess- 
na's Est.,  192  Pa.  14,  1899;  Wymard  v.  Deeds,  21  Pa.  Super.  332, 
1902;  Ramschasel's  Est.,  21  Pa.  Super.  497,  1902;  O'Donnell  v.  Clem- 
ents, 23  Pa.  Super.  447,  1903;  Com.  v.  Shoener,  25  Pa.  Super.  526, 
1904;  Wabash  Ave.,  26  Pa.  Super.  305, 1904;  Johnston's  Est.,  222  Pa. 
514,  1909;  Fitzpatrick  v.  Mortimer,  41  Pa.  Super.  587,  1910;  (c)  ex- 
cerpts from  charge,  or  isolated  sentences,  wrenched  from  their  position 
and  connection  and  not  including  what  was  said  by  way  of  qualifica- 
tion, immediately  preceding  or  following  the  language  quoted,  may  not 
be  assigned  as  error :  Irvin  v.  Kutruff,  152  Pa.  609,  1893 ;  Com.  v.  Zap- 
pe,  153  Pa.  498,  1893;  Com.  v.  Eckerd,  174  Pa.  137,  1896;  Com.  v. 
Swayne,  1  Pa.  Super.  547,  1896;  Knights  v.  Leadbeater,  2  Pa.  Super., 
461,  1896 ;  Boice  v.  Zimmerman,  3  Pa.  Super.  181,  1896 ;  Com.  v.  Gold^ 
berg,  4  Pa.  Super.  142,  1897;  Omensetter  v.  Kemper,  6  Pa.  Super.  309, 
1898 ;  Card  v.  Columbia  Twp.,  191  Pa.  254, 1899 ;  Fricker  v.  Bridge  Co., 
197  Pa.  442, 1900 ;  Com.  v.  Warren,  13  Pa.  Super.  461,  1900 ;  Brinton  v. 
Walker,  15  Pa.  Super.  449,  1900;  Gilchrist  v.  Hartley,  198  Pa.  132, 
1901;  Springer  v.  Stiver,  16  Pa.  Super.  184, 1901;  Russell  v.  Ry.,  17  Pa. 
Super.  195,  1901;  Com.  v.  Stanley,  19  Pa.  Super.  58,  1902;  Karl  v. 
County,  206  Pa.  633,  1903;  Cox  v.  Wilson,  25  Pa.  Super.  635,  1904; 
Com.  v.  Penrose,  27  Pa.  Super.  101,  1905;  Com.  v.  D'Angelo,  29  Pa. 
Super.  378, 1905 ;  Mapes  v.  Packing  Co.,  31  Pa.  Super.  453,  1906 ;  Mur- 
phy v.  Dyer,  223  Pa.  18,  1909;  see  also  §228,  note  (19) ;  (d)  it  is  most 
reprehensible  in  assigning  error  to  join  two  disconnected  sentences 
from  charge  as  if  they  had  immediately  followed  one  another :  Com.  v. 
Eckerd,  174  Pa.  137, 1896;  Brinton  v.  Walker,  15  Pa.  Super.  449,  1900; 
(e)  if  whole  charge  be  alleged  unfair,  assignment  should  set  forth 
charge  in  full:  Com.  v.  Orr,  138  Pa.  276,  1890;  §185,  (1)  (d) ;  (f)  even 
if  it  appear  elsewhere  in  paper-book:  Gilmore  v.  R.  R.,  104  Pa.  275, 
1884;  (g)  general  assignment  that  charge  as  a  whole  was  inadequate 

270 


ASSIGNMENTS  OF  ERROR. 


§§  183-8]  Findings— Evidence         §  186,  (1)  (h)-§  187  (1)  (a) 

and  misleading  will  be  sustained  only  in  clear  cases:  see  §185,  note 
(1)  (c)  and  (d) ;  (h)  assignment  to  answer  to  point  should  not  in- 
clude evidence  and  argument:  Duquesne  Nat.  Bank  v.  Williams,  155 
Pa.  48,  1893;  (i)  where  binding  instructions  are  given,  answers  to 
points  should  not  be  assigned:  Helzer  v.  Helzer,  187  Pa.  243  1898. 

(2)  Findings   of    Court,    Auditor,    Master   or    Viewers.      Error 
assigned  to  dismissing  exceptions  to  findings  of  court,  auditor,  master 
or  viewers  must  set  out  exceptions:  Bowers  v.  Bennethum,  133  Pa. 
306,  1890;  Sauer  v.  Mollinger,  138  Pa.  338,  1890;  Fullerton's  Est.,  146 
Pa.  61,  1892;  Allen  v.  Oxnard,  152  Pa.  621,  1893;  Wright's  Est.,  155 
Pa.  64,  1893;  Wabash  Ave.,  26  Pa.  Super.  305,  1904;  Barr  Twp.  Road, 
29  Pa.  Super.  203,  1905;  Prudential  Trust  Co.  v.  Hildebrand,  34  Pa. 
Super.  249,  1907;  Johnston's  Est.,  222  Pa.  514,  1909. 

(3)  Numbering  Brackets.    Numeral  may  not  be  inserted  in  foot- 
note but  at  side  of  bracket.    Order  of  Supreme  Court,  Jan.,  1912.    For 
Form,  see  Appendix,  §58. 

§187.  —  Admission  or  Rejection  of  Evidence.  When 
the  error  assigned  is  to  the  admission  or  rejection  of  evi- 
dence, or  to  the  striking  out  or  refusal  to  strike  out  evi- 
dence, the  specification  must  quote  the  questions  or  offers, 
the  ruling  of  the  court  thereon,  and  the  evidence  admitted 
or  rejected,  stricken  out  or  which  the  court  refuses  to  strike 
out,  together  with  a  reference  to  the  page  of  the  paper- 
book  or  appendix  where  the  matter  may  be  found  in  its 
regular  order  in  the  printed  evidence  or  notes  of  trial. 
When  the  error  alleged  is  the  admission  or  rejection  of  a 
writing,  a  full  copy  of  the  writing  must  be  printed  in  the 
paper-book.  Any  assignment  of  error  not  according  to  this 
and  the  rule  immediately  preceding  will  be  disregarded. 
Supreme  Court  Rule  28;  Superior  Court  Rule  16. 

(1)  Evidence  Must  be  Quoted,  (a)  The  burden  is  on  appellant  to 
furnish  evidence  in  record  to  make  out  his  case,  and  show  all  facts 
necessary  to  decision  by  appellate  court:  Aiken  v.  Stewart,  63  Pa. 
30,  1870;  Sorg  v.  German  Congregation,  63  Pa.  156,  1870;  Com.  v. 
Miller,  31  Pa.  Super.  317,  1906;  Com.  v.  Sunderlin,  31  Pa.  Super.  349, 

271 


ASSIGNMENTS  OF  ERROR. 


§  187  ( J )  (b)  Evidence  Must  be  Quoted  [Chap.12, 

1906;  see  also  §228,  note  (17)   (d) ;  (b)  and  therefore  an  assignment 
of  error  is  defective  which  fails  to  set  forth  evidence  offered,  admit- 
ted or  rejected,  together  with  rulings  thereon,  and  other  evidence  in 
connection  with  which  evidence  in  question  was  ruled  upon :  Rice  v. 
Bank,  22  Pa.  118,  1853;  Brown  v.  Brooks,  25  Pa.  210,  1855;  Schwenk 
v.  County,  26  Pa.  281,  1856;  Hartman  v.  Shaffer,  71  Pa.  312,  1872; 
Hall  v.  Stanton,  2  W.  N.  C.  578,  1876;  Royse  v.  May,  93  Pa.  454, 1880; 
Noar  v.  Gill,  111  Pa.  488, 1886;  Logan  v.  Friedline,  10  Sad.  461,  1888; 
Hawes  v.  O'Reilly,  126  Pa.  440,  1889;  Battles  v.  Sliney,  126  Pa.  460; 
1889;  Gates  v.  Watts,  127  Pa.  20,  1889;  Warfel  v.  Knott,  128  Pa.  528, 
1889;  Melvin  v.  Melvin,  130  Pa.  6,  1889;  Readdy  v.  Boro.,  137  Pa.  98, 
1890;  Fisher  v.  Gas  Co.,  138  Pa.  301, 1890;  Augestein  v.  Jones,  139  Pa. 
183,  1891;  Huckstein  v.  Kelly,  139  Pa.  201,  1891;  Cornish  v.  Hooker, 
141  Pa.  138,  1891;  Markle  v.  Boro.,  142  Pa.  84,  1891;  Arnold  v.  Bla- 
bon,  147  Pa.  372, 1892;  Pittinger  v.  Kennedy,  148  Pa.  198,  1892;  Beck 
v.  R.  R.,  148  Pa.  271,  1892;  Wust  v.  Iron  Works,  149,  Pa.  263,  1892; 
Com.  Title  Co.  v.  Gray,  150  Pa.  255,  1892;  Van  Home  v.  Dick,  151 
Penna.  341,  1892;  McElroy  v.  Braden,  152  Penna.  78,  1892;  Hauck 
v.  Pipe  Line  Co.,  153  Pa.  366,  1893;  Fritz  v.  Ins.  Co.,  154  Pa.  384, 
1893;  Rosenthal  v.  Ehrlicher,  154  Pa.  396,  1893;  Kramer  v.  Wins- 
low,  154  Pa.  637,  1893 ;  Holthouse  v.  Rynd,  155  Pa.  43,  1893 ;  Bidwell 
v.  Evans,  156  Pa.  30,  1893;  Butchers'  Ice  &  Coal  Co.  v.  Phila.,  156 
Pa.  54,  1893 ;  Broadnax  v.  R.  R.,  157  Pa.  140,  1893 ;  Norbeck  v.  Davis, 
157  Pa.  399,  1893;  Malone  v.  R.  R.,  157  Pa.  430,  1893;  Com.  v.  Werntz, 
161  Pa.  591,  1894;  Norristown  Boro.  v.  Fornance,  1  Pa.  Super.  129, 
1896;  London  Assurance  Co.  v.  Russel,  1  Pa.  Super.  Ct.  Rep.  129, 
1896;  Denniston  v.  Phila.  Co.,  1  Pa.  Super.  599,  1896;  Com.  v.  Smith, 
2  Pa.  Super.  474,  1896;  Com.  v.  House,  3  Pa.  Super.  304,  1897;  So- 
pherstein  v.  Bertels,  178  Pa.  401,  1896;  Raymond  v.  Schoonover,  181, 
Pa.  352,  1897;  Shanahan  v.  Ins.  Co.,  6  Pa.  Super.  65,  1897;  Com.  v. 
Spencer,  6  Pa.  Super.  256,  1898;  Grier  v.  Boro,  6  Pa.  Super.  542, 1898; 
DeRoy  v.  Richards,  8  Pa.  Super.  119,  1898;  Coverdill  v.  Heath,  12 
Pa.  Super.  15,  1899;  Swope  v.  Donnelly,  190  Pa.  417,  1899;  Card  v. 
Columbia  Twp.,  191  Pa.  254,  1899 ;  Com.  v.  Hazlett,  14  Pa.  Super.  352, 
1900;  Myers  v.  Litts,  195  Pa.  595,  1900;  Claflin  Co.  v.  Querns,  15  Pa. 
Super.  464,  1900;  Com.  v.  Earner,  199  Pa.  335,  1901;  Acklin  v.  Oil  Co., 
201  Pa.  257,  1902;  Loeweke  v.  B.  &  L.  Asso.,  21  Pa.  Super.  389,  1902; 
Ramschasel's  Est.,  21  Pa.  Super.  497,  1902;  Com.  v.  Powell,  23  Pa. 

272 


ASSIGNMENTS  OF  ERROR. 


§§  183-8]  Evidence  Must  be  Quoted  §  187  (1)  (b)-(h) 

Super.  370,  1903;  Pizz  v.  Nardello,  23  Pa.  Super.  535,  1903;  Toddes 
v.  Hafer,  25  Pa.  Super.  78,  1904;  Bailey  v.  Pittsburg,  207  Pa.  553, 
1904;  Bachert  v.  Coal  &  Nav.  Co.,  208  Pa.  362,  1904;  McCullough  v. 
Seitz,  28  Pa.  Super.  458,  1905;  Whaley  v.  Bank,  28  Pa.  Super.  531, 
1905;  Mathushek  Piano  Co.  v.  Engberry,  30  Pa.  Super.  543,  1906; 
Creachen  v.  Carpet  Co.,  214  Pa.  15, 1906 ;  Sheridan  v.  Abattoir  Co.,  214 
Pa.  115,  1906;  Bleadingheiser  v.  Crumrine,  34  Pa.  Super.  241,  1907; 
Munson  v.  Crookstin,  219  Pa.  419,  1908;  Com.  v.  McKwayne,  221  Pa, 
449,  1908;  Com.  v.  Yocum,  37  Pa.  Super.  237,  1908;  Sipe  v.  R.  R.,  222 
Pa.  400,  1909;  Com.  v.  Volquarts,  36  Pa.  Super.  199,  1908;  Kalin  v. 
Wehrle,  36  Pa.  Super.  305,  1908;  Brouse  v.  Oliger,  36  Pa.  Super.  399, 
1908;  Ripka  v.  Ins.  Co.,  36  Pa.  Super.  517,  1908;  Winnett  v.  Gas  Co., 
37  Pa.  Super.  204,  1908;  Woldert  Grocery  Co.  v.  Wilkinson,  39  Pa. 
Super.  100,  1909;  Pottsville  Boro.  v.  Gas  Co.,  39  Pa.  Super.  1,  1909; 
Cunningham  v.  Rogers,  225  Pa.  132, 1909;  Com.  v.  Hyde,  39  Pa.  Super. 
261,  1909;  Com.  v.  Cummings,  45  Pa.  Super.  211,  1911;  see  also  §190, 
note  (12),  for  requirements  as  to  printing  evidence  in  paper-book; 
(c)  this  rule  applies  to  findings  of  fact  by  auditor  or  master:  see  §186, 
note  (2);  (d)  and  answers  to  points  and  charge  to  jury:  see  §186, 
note  (1) ;  (e)  where  evidence  has  been  omitted  an  amended  assign- 
ment may  be  allowed:  Zimmerman  v.  Camp,  155  Pa.  152,  1893;  Swope 
v.  Donnelly,  190  Pa.  417,  1896 ;  (f )  it  is  not  enough  that  assignment  be 
supplemented  by  reference  to  evidence  set  out  in  bill  of  exceptions  or 
in  appendix  of  paper-book:  Smith  v.  Tome,  68  Pa.  158,  1871;  Dietrich 
v.  Addams,  9  W.  N.  C.  492,  1881;  London  Assr.  Co.  v.  Russell,  1  Pa. 
Super.  320,  1896;  Pizzi  v.  Nardello,  23  Pa.  Super.  535,  1903;  Vander- 
slice  v.  Donner,  26  Pa.  Super.  319,  1904;  (g)  but  reference  to  page  of 
paper-book,  where  matter  may  be  found  is  necessary:  DeRoy  v.  Rich- 
ards, 8  Pa.  Super.  119,  1898;  Fitzgerald  v.  Illuminating  Co.,  207  Pa. 
118,  1903;  Com.  v.  Powell,  23  Pa.  Super.  370,  1903;  Gerwig  v.  John- 
sion  Co.,  207  Pa.  585,  1904;  Brown  v.  Water  Co.,  213  Pa.  440,  1905; 
Sutton  v.  R.  R.,  214  Pa.  274, 1906;  Hallock  v.  Lebanon,  215  Pa.  1,  1906; 
Cameron  v.  Traction  Co.,  216  Pa.  191,  1907;  American  Car  Co.  v.  R. 
R.,  218  Pa.  519,  1907;  Kalin  v.  Wehrle,  36  Pa.  Super.  305,  1908;  For- 
inger  v.  Stone  Co.,  223  Pa.  425,  1909;  Fowler  Co.  v.  Engine  Wks.,  227 
Pa.  314,  1910;  Anspach  v.  Christman,  44  Pa.  Super.  99,  1910;  Hobel  v. 
Ry.,  229  Pa.  507,  1911 ;  (h)  evidence  must  be  quoted  even  though  offer 
recites  evidence  proposed  to  be  given:  Kennedy  v.  Erdman,  150  Pa, 

273 
18 


ASSIGNMENTS  OF  ERROR. 


§  187  (1)  (i)-(2)  (j)  Documentary  Evidence  [Chap.   12, 

427,  1892;  (i)  and  must  also  set  out  objections  to  offer  and  rulings  of 
court  thereon:  Gish  v.  Brown,  171  Pa.  479,  1895;  Quaker  City  Bank 
v.  Hepworth,  21  Pa.  Super.  566,  1902;  Sheridan  v.  Abattoir  Co.,.  214 
Pa.  115,  1906;  Long  v.  Heppe,  45  Pa.  Super.  76,  1910;  (j)  where 
error  is  assigned  to  rejection  of  testimony,  offer  will  be  treated  as 
stating  facts:  Com.  v.  County,  157  Pa.  531,  1893;  (k)  such  offer  must 
be  set  forth  in  full:  Chambers  v.  Boro.,  140  Pa.  510,  1891;  Gish  v. 
Brown,  171  Pa.  479,  1895;  Pizzi  v.  Nardello,  23  Pa.  Super.  535,  1903; 
Sheridan  Abattoir  Co.,  214  Pa.  115,  1905;  Feingold  v.  Katz,  43  Pa. 
Super.  333,  1910 ;  Lytle  v.  Rupert,  44  Pa.  Super.  493,  1910. 

(2)  Documentary  Evidence,  (a)  Where  the  assignments  of  error 
are  to  the  admission  of  writings  of  any  kind,  copies  of  such  writings 
must  be  set  forth  in  the  assignments  or  in  the  appendix  of  the  paper- 
book,  with  page  reference :  Reynolds  v.  Cridge,  131  Pa.  189, 1890;  Coch- 
ran  v.  Sanderson,  151  Pa.  591,  1892;  Hudson  v.  Watson,  2  Pa.  Super. 
422, 1896;  Springer  v.  Stiver,  16  Pa.  Super.  184, 1901;  McGeary  v.  Ray- 
mond, 17  Pa.  Super.  308,  1901;  Welliver  v.  Canal  Co.,  23  Pa.  Super. 
79,  1903;  McKnight  v.  Newell,  207  Pa.  562,  1904;  Jenkinson  Co.  v. 
Eggers,  28  Pa.  Super.  151,  1905;  Com.  v.  Pearl,  29  Pa.  Super.  307, 
1905;  Creachen  v.  Carpet  Co.,  214  Pa.  15,  1906;  Hallock  v.  Lebanon, 
215  Pa.  1,  1906 ;  Com.  v.  Sunderlin,  31  Pa.  Super.  349,  1906 ;  American 
Car  Co.  v.  R.  R.,  218  Pa.  519,  1907;  Allentown  v.  Ackerman,  37  Pa- 
Super.  363,  1908 ;  Cunningham  v.  Rogers,  225  Pa.  132,  1909 ;  Pottsville 
Boro.  v.  Gas  Co.,  39  Pa.  Super.  1,  1908;  (b)  this  rule  has  been  applied 
to  letters:  Com.  v.  Johnston,  5  Pa.  Super.  585,  1897;  Keystone  Cycle 
Co.  v.  Jones,  12  Pa.  Super.  134,  1899 ;  Kaufman  v.  R.  R.,  210  Pa.  440. 
1904;  (c)  book-accounts:  Coverdill  v.  Heath,  12  Pa.  Super.  15,  1899; 

(d)  promissory  note :  Jenkinson  v.  Eggers,  28  Pa.  Super.  151,  1905 ; 

(e)  municipal  ordinances:   Grier  v.  Boro.,  6  Pa.  Super.  542,  1897; 
Bailey  v.  Pittsburg,  207  Pa.  553,  1904;  (f)  drafts  or  plans:  Hudson 
v.  Watson,  2  Pa.  Super.  422,  1896;  (g)  survey  of  premises  in  trespass: 
Pittenger  v.  Kennedy,  148  Pa.  198,  1892;   (h)  report  of  weather  bu- 
reau: Nolt  v.  Crow,  22  Pa.  Super.  113,  1903;   (i)  exemplification  of 
record :  Kreiner  v.  R.  R.,  135  Pa.  Super.  184,  1890 ;  Cochran  v.  Sander- 
son, 151  Pa.  541,  1892;  Silliman  v.  Whitmer,  11  Pa.  Super.  243,  1899; 
(j)  where  allowance  of  amendment  is  complained  of,  amendment  must 
be  set  out  in  assignment:  Norristown  Boro.  v.  Fornance,  1  Pa.  Super. 

274 


ASSIGNMENTS  OF  ERROR. 


§§183-8]  Exceptions  must   be  Shown  §  187  (3)-(4)  (c) 

129,  1896;  see  also  as  to  printing  documentary  evidence  in  paper-book, 
§190,  note  (13). 

(3)  Names  of  Witnesses  to  be  Given.    Name  of  witness  should  be 
given  and  reference  made  to  page  of  his  testimony :  Hawes  v.  O  'Reilly, 
126  Pa.  440, 1889;  DeRoy  v.  Richards,  8  Pa.  Super.  119,  1898;  Gerwig 
v.  Johnston  Co.,  207  Pa.  585,  1904. 

(4)  Exceptions  Must  be  Shown — Quoting  Bill,   (a)  Assignment  must 
show  exceptions  taken  at  time  of  trial:  Burson  v.  Fire  Asso.,  136  Pa. 
267,  1890 ;  Readdy  v.  Shamokin  Boro.,  137  Pa.  98,  1890 ;  Augerstein  v. 
Jones,  139  Pa.  183,  1891;  Huckestein  v.  Kelly,  139  Pa.  201,  1891; 
Chambers  v.  South  Chester  Boro.,  140  Pa.  510,  1891;  Rosenthal  v. 
Ehrlicher,  154  Pa.  396,  1903;  Mixel  v.  Betz,  168  Pa.  328,  1895;  Gal- 
braith  v.  Phila.  Co.,  2  Pa.  Super.  359,  1896;  Com.  v.  Wilson,  186  Pa.  1, 
1898;  Yeager  v.  Cassidy,  12  Pa.  Super.  232, 1900;  Schondorf  v.  Griffith, 
13  Pa.  Super.  580, 1900;  Simpson  v.  Myers,  197  Pa.  522, 1901;  Com.  v. 
Bunnell,  20  Pa.  Super.  51,  1902 ;  Pizzi  v.  Nardello,  23  Pa.  Super.  535, 
1903;  Levison  v.  Davis,  212  Pa.  148,  1905;  as  to  necessity  for  excep- 
tions, see  §161,  note  (1),  and  §228,  notes  (10)  and  (11) ;  (b)  a  party 
will  be  limited  to  specific  objections  made  to  evidence  on  trial:  Berks 
Road  v.  Myers,  6  S.  &  R.  12,  1820;  Wolverton  v.  Com.,  7  S.  &  R.  273, 
1821;  Benner  v.  Hauser,  11  S.  &  R.  352,  1824;  Far  v.  Swan,  2  Pa.  245, 
1846;  Peters  v.  Horbach,  4  Pa.  134,  1846;  Mills  v.  Buchanan,  14  Pa. 
59,  1850;  Plank  Road  Co.  v.  Ramage,  20  Pa.  95,  1852;  Lovett  v.  Math- 
ews,  24  Pa.  330,  1855;  Rhines  v.  Baird,  41  Pa.  256,  1862;  Danley  v. 
Danley,  179  Pa.  170, 1897;  (c)  but  general  exception  is  sufficient  unless 
part  of  testimony  offered  is  admissible  for  some  purpose,  or  party  is 
called  on  to  state  specific  grounds :  Benner  v.  Hauser,  11  S.  &  R.  352, 
1824;  Peters  v.  Horback,  4  Pa.  134,  1846;  Penna.  M.  A.  Soc.  v.  Corley, 
2  Penny.  139,  1882;  see  §228,  note  (11)   (h) ;  (d)  where  evidence  ob- 
jected to  was  admissible  for  some  purposes,  assignment  will  not  b« 
considered  unless  exceptions  show  purpose  of  offer  and  reasons  for  ob- 
jection thereto:  Benner  v.  Hauser,  11  S.  &  R.  352,  1824;  Norbeck  v. 
Davis,  157  Pa.  399,  1893 ;  (e)  where  record  does  not  show  objection  or 
exception  to  binding  instructions,  appellate  court  will  not  consider  as- 
signment to  disallowance  of  evidence :  Guemple  v.  Transit  Co.  224,  Pa. 
327,  1909 ;  (f )  assignment  of  error  as  to  admission  or  rejection  of  evi- 
dence must  quote  full  substance  of  bill  of  exceptions  in  immediate 

275 


ASSIGNMENTS  OF  ERROR. 


§187  (4)(f)-§188         Appeals  from  Superior  Court  [Chap.  12, 

connection  with  specification,  and  failing  to  do  so,  will  not  be  consid- 
ered: Dietrich  v.  Addams,  9  W.  N.  C.  492,  1881;  Walton  v.  Hinnau, 
146  Pa.  396,  1892;  Zimmerman  v.  Camp,  155  Pa.  152,  1893;  Gish  v. 
Brown,  171  Pa.  479,  1895;  Rodovinsky  v.  Knitting  Co.,  5  Pa.  Super. 
636,  1897;  Shanahan  v.  Ins.  Co.,  6  Pa.  Super.  65,  1897;  Com.  v.  Spen- 
cer, 6  Pa.  Super.  256, 1898;  Rice  v.  Burns,  9  Pa.  Super.  58, 1898;  Com. 
v.  Heidler,  191  Pa.  375,  1899;  Ewing  v.  Cottman,  9  Pa.  Super.  444, 
1899;  Turnpike  Road  v.  County,  196  Pa.  21,  1900;  Cob.  v.  Hazlett,  14 
Pa.  Super.  352,  1900;  Loeweke  v.  B.  &  L.  Asso.,  21  Pa,  Super.  389, 
1902;  Quaker  City  Nat.  Bank  v.  Hepworth,  21  Pa.  Super.  566,  1902; 
Com.  v.  Powell,  23  Pa.  Super.  370,  1903;  Creachen  v.  Carpet  Co.,  214 
Pa.  15,  1906;  Sheridan  v.  Abattoir  Co.,  214  Pa.  115,  1906;  Boyce  v. 
Loan  Asso.,  218  Pa.  494,  1907;  (g)  court  may,  in  its  discretion,  allow 
amendment  of  assignment  at  bar  so  as  to  include  bill  of  exceptions 
which  had  been  omitted:  Zimmerman  v.  Camp,  155  Pa.  152,  1893. 

§188.  Appeals  from  Superior  Court.  "The  question 
here  [in  the  Supreme  Court]  is  not  whether  the  Superior 
Court  was  critically  accurate  in  all  its  statements  of  law  or 
fact,  but  whether  it  was  correct  in  its  dealing  with  the  al- 
leged errors  of  the  court  below.  In  regard  to  the  assign- 
ment of  errors,  an  appeal  from  the  Superior  Court  to  this 
Court  is  analogous  to  an  appeal  from  a  judgment  of  the 
common  pleas  or  orphans'  court  on  exceptions  to  the 
findings  and  report  of  an  auditor  or  referee.  The  proper 
form  therefore  is  that  'the  Superior  Court  erred  in  not  sus- 
taining (or  in  sustaining,  as  the  case  may  be)  the  first  as- 
signment of  error  to  the  judgment  of  the  common  pleas, 
to  wit/  etc.  The  assignments  of  error  in  the  Superior 
Court  are  therefore  the  principal  errors  with  which  this 
Court  is  usually  concerned  and  which  will  generally  de- 
velop the  whole  controversy,  but  if  there  are  any  new  and 
further  matters  raised  by  the  judgment  of  the  Superior 
Court  itself,  they  should  be  assigned  separately  in  their 

276 


ASSIGNMENTS  OF  ERROR. 


§§  183-8]  Appeals  from  Superior  Court  §  188 

due  order."     Mr.  Justice  Mitchell  in  Mellick  v.   Penna, 
R.  R.,  203  Pa.  457,  459,  1902. 

(1)  Form  of  Assignments.    The  manner  of  assigning  error  on  ap- 
peals from  Superior  Court  recommended  above  has  been  approved  in 
Griesmer  v.  Hill,  225  Pa.  545,  1909,  and  Gibson  v.  R.  R.,  226  Pa.  198, 
1910. 

(2)  Question  for  Consideration  on  Appeal.       On  appeal  from 
Superior  Court,  question  for  consideration  is  whether  decision  of  that 
court  is  correct  on  the  record  which  was  before  it;  if  there  was  a 
misapprehension  of  fact  through  inadvertent  error  of  counsel  in  pre- 
senting the  case,  the  remedy  is  by  application  to  that  court,  not  by 
appeal  to  Supreme  Court :  Phila.  v.  Penna.  Co.,  214  Pa.  138, 1906.    Su- 
preme Court  will  affirm  decree  of  Superior  Court  reversing  orphans' 
court  where  record  is  so  defective  that  it  is  impossible  to  ascertain 
facts  of  case:  Stevenson's  Est.,  186  Pa.  262,  1898. 


277 


PAPER-BOOKS. 


§  189  Style,  Index,  Cover,  etc.  [Chap.  13, 

CHAPTER  XIII 

PAPER-BOOKS. 

§189.  Style,  Index  and  Cover,  etc. 

§190.  Contents — Paper-Books  of  Appellant — Judgment  on  Verdict. 

§191.  Judgment  on  Case  Stated. 

§192.  Judgments  at  Law  not  Founded  on  Verdict  or  Case  Stated. 

§193.  Equity  and  Orphans'  Court. 

§194.  Quarter  Sessions  Court. 

§195.  Certificate  of  Amount  in  Controversy — Quashing. 

§196.  Statement  of  Question  Involved. 

§197.  History  of  Case. 

§198.  Assignments  of  Error. 

§199.  Brief  of  Argument. 

§200.  Citation  of  Authorities. 

§201.  Appeals  from  Superior  Court. 

§202.  Paper-Book  of  Appellee. 

§203.  Service — (A)  Generally — Number  of  Copies  to  be  Furnished. 

(B)  Criminal  Cases. 

§204.  Philadelphia  County. 

§205.  Penalty  for  Non-Compliance  with  Eules — Non-Suit. 

§189.  Style,  Index  and  Cover,  etc.  Paper-books  shall 
be  furnished  on  unglazed  book  paper  9  in.  x  6  in.  in  size, 
and  printed  from  small  pica  or  long  primer  type,  with  a 
margin  of  not  less  than  one  inch.  The  cover  must  be  suffi- 
ciently light  in  color  and  firm  in  texture  to  permit  writing 
in  ink  thereon  to  be  easily  read;  it  must  show  the  number 
and  term  of  the  case  in  this  court,  the  names  of  the  parties 
in  the  same  order  as  they  appear  on  the  docket  of  the  court 
below,  with  the  addition  of  the  word  "Appellant"  after  the 
name  of  the  party  taking  the  appeal,  and  the  court  from 
which  the  appeal  is  taken.  Appeals  in  the  orphans'  court 

shall  be  entitled  "Estate  of .    Appeal  of ." 

Supreme  Court  Rule  45 ;  Superior  Court  Rule  34. 

278 


PAPER-BOOKS. 


§§  189-205]  Index,  Paging,  etc.  §  189 

All  paper-books  shall  contain  a  full  and  complete 
index,  including  an  index  of  the  appendix,  which  shall  be 
on  the  inside  of  the  front  cover  of  the  book,  or  on  the  fol- 
lowing pages  thereof.  The  index  of  the  appendix  shall 
contain  a  full  and  complete  reference  to  its  contents,  in- 
cluding exhibits  and  the  names  of  witnesses  and  where  the 
testimony  is  printed,  indicating  in  each  instance  where  the 
examination,  cross-examination,  and  re-examination  be- 
gins. If  a  paper-book  contains  more  than  one  hundred 
pages,  the  appendix  shall  be  printed  in  a  separate  paper- 
book  with  a  proper  index  thereto.  Supreme  Court  Rule 
46;  Superior  Court  Rule  35. 

Brief  words  shall  be  printed  at  the  top  of  each  page  of 
the  paper-book,  indicating  the  character  of  the  matter  con- 
tained therein;  and  in  the  appendix  the  name  of  the  witness 
or  the  character  of  the  document  shall  so  appear.  The 
pages  of  the  paper-book  shall  be  numbered  in  Arabic  fig- 
ures, and  not  in  Roman  numerals,  those  in  the  appendix 
to  be  followed  by  a  small  a,  thus:  looa.  When  possible, 
all  plans  and  drawings  accompanying  a  paper-book  shall 
be  reduced  to  the  size  of  a  folio  of  not  more  than  three 
pages.  Supreme  Court  Rule  39;  Superior  Court  Rule  28. 

(1)  Index,      (a)    Paper-book   containing   no   index   will   be   sup- 
pressed: Hessel  v.  Bradstreet  Co.,  141  Pa.  501,  1891;  (b)  where  ap- 
pellant is  in  default,  appeal  will  be  quashed:  Saxton's  Est.,  195  Pa. 
459,  1900;  Sailor  v.  Reamer,  20  Pa.  Super.  597,  1902;  Thompson  v. 
Petriello,  33  Pa.  Super.  651, 1907;  (c)  brief  table  of  contents  is  not  an 
index,  and  lumping  together  one  hundred  and  twenty-six  pages  of 
testimony  under  single  word  "evidence,"  does  not  comply  with  rule: 
Wilson  v.  Scranton,  141  Pa.  621,  1891.     See  Appendix,  §58  (A),  for 
forms  and  comments,  especially  as  to  alphabetical  arrangement. 

(2)  Paging  Appendix.    The  Appendix,  whether  bound  separately 
or  with  the  rest  of  the  paper-book,  must  have  a  separate  paging,  be- 
ginning with  la  and  not  lOOa:   Construction  of  Rule  by  Supreme 
Court,  Jan.,  1912. 

279 


PAPER-BOOKS. 

§  190  Judgment  on  Verdict  [Chap.  13, 

§190.  Contents — Paper-Book  of  Appellant — Judgment 
on  Verdict.  In  all  cases  where  the  appeal  is  from  a  judg- 
ment on  a  verdict,  the  paper-book  of  the  appellant  shall 
contain  the  following  matter  in  the  following  or- 
der: i.  Names  of  all  the  parties  as  they  stood 
on  the  record  of  the  court  below  at  the  time  of 
the  trial,  with  the  addition  of  the  word  "appellant"  after 
the  name  of  the  party  taking  the  appeal,  and  the  form  of 
the  action.  2.  Copy  of  the  docket  entries.  3.  Abstract  of 
the  proceedings  showing  the  issue  and  how  it  was  made. 
4.  When  necessary,  a  certificate  of  the  trial  judge  showing 
the  amount  in  controversy  (See  Rule  23  [§117  (B)]).  5. 
Statement  of  the  questions  involved  (See  Rule  34  [§196]). 
6.  History  of  the  case  (See  Rule  35  [§197]).  7.  Charge  of 
the  court,  naming  the  judge,  the  points,  if  any,  which  were 
submitted  in  writing  to  the  court,  and  the  answers  thereto. 
8.  Verdict  of  the  jury  and  the  judgment  thereon.  9.  As- 
signments of  error  [§198].  10.  Brief  of  argument  of  the 
appellant  (See  Rule  36  [§199]).  n.  Appendix  containing 
the  evidence,  and  the  pleadings  in  full,  including  any  opin- 
ion of  the  court  below  filed  in  the  case,  and  copies  of  plans 
or  drawings,  whenever  they  have  been  used  in  the  court 
below  and  are  necessary  for  a  correct  or  ready  understand- 
ing of  the  case  (See  Rules  24  [§156]  and  39  [§189].  Su- 
preme Court  Rule  29. 

In  all  cases  where  the  appeal  is  from  a  judgment  on  a 
verdict,  the  paper-book  of  the  appellant  shall  contain  the 
following  matters  in  the  following  order:  I.  Names  of  all 
the  parties  as  they  stood  on  the  record  of  the  court  below 
at  the  time  of  the  trial,  with  the  addition  of  the  word  "ap- 
pellant" after  the  name  of  the  party  taking  the  appeal,  and 
the  form  of  the  action.  2.  Copy  of  the  docket  entries,  3. 
Abstract  of  the  proceedings  showing  the  issue  and  how 

280 


JUDGMENT  ON  VERDICT. 


§§  189-205]  Contents  §  190,  ( 1 )  -  ( 3 ) 

it  was  made.  4.  Statement  of  the  questions  involved  (See 
Rule  23  [§196]).  5.  History  of  the  case  (See  Rule  24 
[§I97])-  6.  Charge  of  the  court,  naming  the  judge,  the 
points,  if  any,  which  were  submitted  in  writing  to  the  court, 
and  the  answers  thereto.  7.  Verdict  of  the  jury  and  the 
judgment  thereon.  8.  Assignment  of  error  [§198].  9. 
Brief  of  argument  of  the  appellant  (See  Rule  25  [§199]. 
10.  Appendix  containing  the  evidence,  and  the  pleadings 
in  full,  including  any  opinion  of  the  court  below  filed  in 
the  case,  and  copies  of  plans  or  drawings,  whenever  they 
have  been  used  in  the  court  below  and  are  necessary  for  a 
correct  or  ready  understanding  of  the  case.  (See  Rule  21 
[§156]  and  28  [§189]).  Superior  Court  Rule  17. 

Forms.    See  Appendix,  §58,  with  comments. 

(1)  Names  of  Parties,    (a)  Where  names  are  not  set  out  in  papei- 
book,  non-pros  will  be  entered:  O'Donnell  v.  Clements,  23  Pa.  Super. 
447,  1903;  (b)  appeals  in  different  actions,  where  there  are  different 
parties,  should  not  be   combined  in  a  paper-book:   Philadelphia  v. 
Merklee,  159  Pa.  515,  1894. 

(2)  Term  and  Number  in  Court  Below.    While  not  required  by  rule 
of  court,  proper  practice  suggests  that  the  term  and  number  of  the 
case  in  the  court  below  be  given,  in  all  cases.     They  should  be  in- 
serted after  the  name  of  the  lower  court  on  the  first  page  of  the  cover. 

(3)  Docket  Entries,    (a)  Omission  of  docket  entries  of  case  stated 
will  justify  quashing  appeal:  Dougherty  v.  Cumberland  Co.,  22  Pa. 
Super.  591,  1903;  Warwick  Steel  Co.  v.  McKeag,  205  Pa.  490,  1903; 
Com.  v.  Pilnik,  29  Pa.  Super.  285,  1905;   (b)   the  record  should  be 
exactly  copied  without   rearrangement   or  abbreviation:   Bristor  v. 
Tasker,  135  Pa.  110,  1890;  Trescott  v.  Bank,  212  Pa,  47,  1905;  North 
Mountain  Water  Co.  v.  Troxell,  223  Pa.  315,  1909;  (c)  intentional  al- 
tering of  docket  entries  is  punishable  by  disbarment :  Bristor  v.  Task- 
«r,  135  Pa.  110,  1890;   (d)   on  appeal  from  judgment  affirming  pro- 
ceedings before  a  justice  under  Act  Dec.  14,  1863,  P.  L.  (1864)  1125, 
2  Purd.  2194,  pi.  33,  record  of  proceedings  before  a  justice  must  be 
printed:  Cunningham  v.  Everett,  24  Pa.  Super.  469,  1904;  (e)  omis- 

281 


PAPER-BOOKS. 


§  190  (4)- (12)  (a)  Judgment  on  Verdict  [Chap.  13, 

sion  thereof  is  not  corrected  by  printing  continuance  docket  entries  or 
reciting  facts  from  opinion  of  lower  court.  Id. 

(4)  Verdict.     A  verdict  not  set  forth  in  paper-book  cannot  be 
made  basis  of  assignment  of  error:  McCoy  v.  Hance,  28  Pa.  149,  1857. 

(5)  Judgment  Below.     Where   paper-book  does  not  show  judg- 
ment in  court  below,  appeal  will  be  quashed:  Warwick  Iron  &  Steel 
Co.  v.  McKeag,  205  Pa.  490,  1903. 

(6)  Statement  of  Question.    See  §196,  below. 

(7)  History  of  Case.    See  §197,  below. 

(8)  Charge.    The  charge  must  be  printed  in  full,  and  the  portions 
assigned  for  error  enclosed  with  brackets  properly  numbered.     This 
will  show  the  context  necessary  for  a  decision  of  the  case  and  will 
greatly  facilitate  the  labors  of  the  court  and  counsel.    Appeal  will  be 
quashed  where  charge  is  not  printed:  Fritzius  v.  Brennan,  28  Pa.  Su- 
per. 365,  1905;  National  Lumber  Co.  v.  Mehaffey,  30  Pa.  Super.  544, 
1906;  Patton  v.  Allegheny  L.  &  T.  Co.,  36  Pa.  Super.  296,  1908;  see 
§186,  and  note  (1). 

(9)  Specifications  of  Error.    See  §198,  below. 

(10)  Brief.    See  §199,  below. 

(11)  Appendix.    Appendix  should  contain  record  in  full:  Stokely 
v.  Trout,  3  Watts  163,  1834;  Philadelphia  v.  Riddle,  25  Pa.  259,  1855; 
Mitchell  v.  Com.,  37  Pa.  187,  1860;  LaPlume  Borough,  18  W.  N.  C. 
82,  1886.    See  §156,  above. 

(12)  Evidence,    (a)  The  evidence  must  be  printed  in  full :  Stokely 
v.  Trout,  3  Watts.  163,  1834;  Plank  Rd.  Co.  v.  Rineman,  20  Pa.  99, 
1852;  Thomas  v.  Snyder,  23  Pa.  515,  1854;  Phila.  v.  Riddle,  25  Pa. 
259,  1855;  Allegheny  City  v.  Nelson,  25  Pa.  332,  1855;  Graff  v.  Bar- 
rett, 29  Pa.  477,  1857 ;  Mitchell  v.  Com.,  37  Pa.  187,  1860 ;  Eakman  v. 
Schaffer,  48  Pa.  176,  1864;  Brindle  v.  Brindle,  50  Pa.  387,  1865; 
O'Donnell  v.  Allegheny  R.  R.,  50  Pa.  490,  1865;  Davenport  v.  Wright, 
51  Pa.  292,  1865;  Smith  v.  Ege,  52  Pa.  419,  1866;  Borough  v.  Dorer, 
16  P.  L.  J.  51, 1867;  Sorg  v.  St.  Paul's  Congregation,  63  Pa.  156,  1869; 
Elbert  v.  Folwell,  1  W.  N.  C.  228,  1874;  Wacker  v.  Straub,  88  Pa.  32, 
1878;  Oakland  Ry.  v.  Thomas,  1  Penny.  435, 1881;  McCandles  v.  Young, 
96  Pa.  289,  1881 ;  Shlippy  v.  Foust,  3  Walk.  56,  1882 ;  Schultz  's  Ap.,  6 
Sad.  300,  1887;  Wagenhorst's  Ap.,  126  Pa.  127,  1889;  Lowenstein  v. 
Ins.  Co.,  132  Pa.  410,  1890;  Crawford  v.  City,  23  W.  N.  C.  141,  1889; 

282 


JUDGMENT  ON  VERDICT. 


§§189-205]  Evidence  §  190  (12)  (a)-(i) 

Greenhoe  v.  College,  144  Pa.  131, 1891;  Pittenger  v.  Kennedy,  148  Pa. 
198,  1892;  McElheny  v.  McKeesport  Bridge  Co.,  153  Pa.  108,  1893; 
Com.  v.  Werntz,  161  Pa.  591,  1894;  Bradley  v.  Vernon,  166  Pa. 
603,  1895;  Susong's  Ap.,  2  Pa.  Super.  611,  1896;  Woodward  v.  Heist, 
180  Pa.  161,  1897;  Wilson  v.  Keller,  195  Pa.  98,  1900;  Wills  v.  Hard- 
castle,  19  Pa.  Super.  525, 1902;  Com.  v.  Hasse,  21  Pa.  Super.  291, 1902; 
Com.  v.  Sober,  22  Pa.  Super.  22,  1902;  Backenstoe  v.  Nine,  22  Pa. 
Super.  29, 1902;  Hoff  v.  Hamilton,  28  Pa.  Super.  76, 1905;  Union  Trust 
Co.  v.  Cain  (No.  2),  29  Pa.  Super.  197,  1905;  Miller  v.  Doyle,  211  Pa. 
59,  1905;  Nat.  Lumber  Co.  v.  Mehaffey,  30  Pa.  Super.  544,  1906;  Com. 
v.  Miller,  31  Pa.  Super.  309,  1906 ;  Crane  Marks  Co.  v.  Gordon,  33  Pa. 
Super.  315,  1907;  Hoffman's  Est.,  37  Pa.  Super.  548,  1909;  see  also 
§187,  note  (1),  as  to  printing  evidence  in  assignment  of  error;  (b) 
failure  to  do  so  will  justify  dismissal  of  all  assignments  on  which 
testimony  has  bearing :  Joyce  v.  Lynch,  17  W.  N.  C.  79,  1885 ;  Bradley 
v.  Vernon,  166  Pa.  603,  1895;  Wilson  v.  Keller,  195  Pa.  98,  1900; 
Wills  v.  Hardcastle,  19  Pa.  Super.  525,  1902;  Com.  v.  Hasse,  21  Pa. 
Super.  291,  1902;  Wilson  v.  Snyder,  22  Pa.  Super.  451,  1903;  Fritzius 
v.  Brennan,  29  Pa.  Super.  365,  1905;  Com.  v.  Quinn,  42  Pa.  Super. 
490,  1910;  (c)  and  will  warrant  presumption  that  testimony  omitted 
was  proper,  or  that  charge  assigned  for  error  was  proper :  Alexander  v. 
Bank,  1  Pa.  395,  1845;  Himblewright  v.  Armstrong,  25  Pa.  428,  1855; 
Joyce  v.  Lynch,  17  W.  N.  C.  79,  1885;  Bradley  v.  Vernon,  166  Pa. 
603,  1895;  Wilcox  v.  Snyder,  22  Pa.  Super.  451,  1903;  (d)  but  counsel 
may  agree  that  certain  evidence  need  not  be  printed :  Wilson  v.  Keller, 
195  Pa.  98,  1900;  see  also  §156,  above;  (e)  and  evidence  wholly 
unnecessary  to  an  understanding  of  the  case  need  not  be  printed :  Mc- 
Beth  v.  Newlin,  15  W.  N.  C.  129,  1884;  (f)  printing  100  pages  of 
testimony  in  narrative  form  and  in  small  type  is  subject  to  grave 
criticism:  Herrington's  Est.,  17  Pa.  Super.  530,  1901;  (g)  court  will 
not  consider  allegation  that  default  is  due  to  court  stenographer 
when  it  does  not  appear  that  every  reasonable  effort  has  been  made  to 
compel  him  to  perform  his  duty:  Com.  v.  Hasse,  21  Pa.  Super.  291, 
1902;  Com.  v.  Ezell,  212  Pa.  293,  1905;  (h)  recital  of  facts  in  opinion 
of  trial  judge  is  not  a  substitute  for  printing  testimony  in  absence  of 
agreement  to  that  effect:  Hoff  v.  Hamilton,  28  Pa.  Super.  76,  1905; 
(i)  where  appellant  fails  to  print  testimony,  such  omission  is  not 
cured  by  appellee  printing  part  of  it:  Smith  v.  Bank,  15  W.  N.  C. 
326;  (j)  and  if  appellee  prints  testimony  which  should  have  been 

283 


PAPER-BOOKS. 


§190(12)(j)-(13)(a)    Judgment  on  Verdict— Evidence  [Chap.  13, 

printed  by  appellant,  latter  may  be  ordered  to  pay  for  printing: 
Solts's  Ap.,  4  W.  N.  C.  298,  1877;  Wharmby's  Ap.,  4  Kulp  23,  1885; 
(k)  findings  of  auditor  or  referee  will  not  be  considered  unless  evi- 
dence is  printed:  Singmaster's  Ap.,  86  Pa.  169,  1878;  Susong's  Ap., 
2  Pa.  Super.  611,  1896;  Osterheldt  v.  Phila.,  195  Pa.  355,  1900;  Pitts- 
burgh Wagon  Works'  Est.,  198  Pa.  250,  1901;  Stockdale  v.  Maginn, 
207  Pa.  227,  1903;  Penn-Gaskell 's  Est.,  208  Pa.  346,  1904;  O'Donnell 
v.  Clements,  23  Pa.  Super.  447,  1903;  Thompson  v.  Prettyman,  231 
Pa.  1,  1911;  (1)  same  rule  applies  to  evidence  which  forms  basis 
of  any  judgment  or  decree  of  orphans'  court:  Board  of  Publi- 
cation's Ap.,  35  L.  1. 114, 1878;  D'Arros's  Ap.,  89  Pa.  51, 1879;  Hynd- 
man  v.  Hogsett,  111  Pa.  643,  1886;  Schultz's  Ap.,  6  Sad.  300,  1887; 
Wagenhorst's  Ap.,  126  Pa.  127, 1889;  Feagley  v.  Norbeck,  127  Pa.  238, 
1889 ;  Bordo  v.  R.  R.,  141  Pa.  484,  1891 ;  Humphrey  v.  Tozier,  154  Pa. 
410,  1893;  (m)  or  of  quarter  sessions:  Madison  Overseers  v.  Over- 
seers, 3  Sad.  494,  1886;  Springer  v.  Stiver,  16  Pa.  Super.  184,  1901; 
(n)  where  findings  of  fact  are  objected  to,  counsel  should  collect  evi- 
dence in  full  in  their  argument,  giving  references  to  pages:  Morgan's 
Ap.,  19  W.  N.  C.  19,  1887;  Singmaster's  Ap.,  86  Pa.  169,  1887;  (o) 
on  appeal  by  receiver,  decree  will  be  affirmed  where  necessary  testi- 
mony has  not  been  printed,  though  receiver  had  insufficient  funds  to 
pay  for  printing:  Miller  v.  Doyle,  211  Pa.  59,  1905;  (p)  assignments 
to  ruling  on  evidence  must  contain  references  to  page  of  paper-book 
where  evidence  referred  to  is  to  be  found:  Fitzgerald  v.  Electric  Co., 
207  Pa.  118, 1903;  Cameron  v.  Traction  Co.,  216  Pa.  191, 1907;  see  also 
§187,  note  (1)  (g) ;  (q)  names  of  witnesses  should  be  printed:  Gerwig 
v.  Johnston  Co.,  207  Pa.  585,  1904;  see  also  §187,  note  (3) ;  (r)  where 
assignment  of  error  is  to  discharge  of  rule  for  new  trial,  and  deposi- 
tions submitted  on  argument  of  rule  are  not  printed  in  appellant's 
paper-book,  appellate  court  will  assume  that  facts  are  as  stated  in 
opinion  of  lower  court  discharging  rule :  Volk  v.  Beatty,  40  Pa.  Super. 
628,  1909 ;  (s)  in  printing  testimony,  it  is  well  to  enclose  the  portions 
assigned  for  error  in  brackets  properly  numbered.  This  will  aid  in 
finding  the  references  from  the  assignments  as  required  by  rules  of 
court.  See  §187,  above. 

(13)  Documentary  Evidence,  (a)  Documentary  evidence  must  be 
printed,  or  assignments  relating  to  it  will  be  dismissed:  Whetstone  v. 
Bowser,  29  Pa.  59, 1857;  Brindle  v.  Brindle,  50  Pa.  387, 1865;  Aiken  v. 
Stewart,  63  Pa.  30, 1869;  Palethorp  v.  Whitaker,  1  W.  N.  C.  163, 1873; 

284 


JUDGMENT  ON  VERDICT. 


§§189-205]  Documentary  Evidence  §  190  (13)  (a)- (v) 

Clever 's  Est.,  154  Pa.  481,  1893;  McGeary  v.  Raymond,  17  Pa.  Super. 
308, 1901;  MeKnight  v.  Newell,  207  Pa.  562, 1904;  Allentown  v.  Acker- 
man,  37  Pa.  Super.  363,  1908;  Pottsville  Boro.  v.  Gas  Co.,  39  Pa. 
Super.  1,  1909;  (b)  the  rule  has  been  enforced  in  case  of  deeds: 
Stokely  v.  Trout,  3  Watts  163, 1834;  Phila.  v.  Riddle,  25  Pa.  259, 1855 ; 
Himblewright  v.  Armstrong,  25  Pa.  428,  1885;  Steel  v.  Hall,  38  L.  I. 
240,  1881;  (c)  mortgages:  Union  Trust  Co.  v.  Cain  (No.  2),  29  Pa. 
Super.  197,  1905;  (d)  policy  of  insurance:  Backenstoe  v.  Nine,  22  Pa. 
Super.  29,  1903;  (e)  rule  of  reference:  Alexander  v.  Bank,  1  Pa.  395, 
1845;  (f)  letters:  Edwards  v.  Tracy,  62  Pa.  374,  1870;  Erie  City  Iron 
Works  v.  Barber,  106  Pa.  125,  1884;  (g)  municipal  ordinance:  Wilvert 
v.  Sunbury,  81%  Pa.  57,  1871;  Erie  v.  Bier,  10  Pa.  Super.  381,  1899; 
(h)  bill  in  equity  and  report  of  master:  Sweetzer  v.  Atterbury,  100 
Pa.  18,  1882 ;  Com.  v.  Sober,  22  Pa.  Super.  22, 1903 ;  (i)  notice  of  peti- 
tion for  incorporation  of  borough:  Moosic  Boro.,  12  Pa.  Super.  353, 
1900;  (j)  deposition:  First  Nat.  Bank  v.  Shreiner,  110  Pa.  188,  1885; 
(k)  disclaimer  in  ejectment;  Thompson  v.  Kaufman,  9  Pa.  Super.  305, 
1899;  (1)  docket  entries  and  record  of  former  suit:  Ott  v.  Oyer,  106 
Pa.  6,  1886;  Goodhart  v.  Bishop,  142  Pa.  416,  1891;  (m)  pleadings: 
note  (14),  this  section;  (n)  record  of  justices'  proceedings:  Cunning- 
ham v.  Everett,  24  Pa.  Super.  469,  1904;  (o)  maps,  drafts  or  plans: 
Pittenger  v.  Kennedy,  148  Pa.  198,  1892;  Hudson  v.  Watson,  2  Pa. 
Super.  422,  1896;  (p)  wills:  Jennings 's  Est.,  38  Pa.  Super.  522,  1909; 
(q)  petition  for  appointment  of  road  viewers:  Bent  v.  Twp.  Road,  41 
Pa.  Super.  57,  1909 ;  (r)  rule  of  court :  Haines  v.  Young,  13  Pa.  Super. 
303,  1900 ;(  a)  in  accident  case,  accurate  plan  of  place  where  accident 
occurred,  of  convenient  size,  should  be  used  on  trial,  and  accompany 
paper-book  on  appeal:  Kupp  v.  Rummel,  199  Pa.  90,  1901;  (t)  where 
appellant  fails  to  print  in  his  paper-book  a  writing  which  is  an  essen- 
tial feature  of  the  case,  appellate  court  will  accept  as  correct  state- 
ments made  as  to  paper  by  trial  judge  in  his  charge:  Krider  v.  Hart- 
zell,  40  Pa.  Super.  186,  1909;  see  §156  for  procedure  when  counsel 
fail  to  agree  as  to  necessity  of  printing  plans  and  drawings;  (u) 
where  suit  for  demurrage  of  cars  turns  on  construction  of  rules  of 
interstate  commerce  commission,  such  rules  must  be  printed:  Penna. 
R.  R.  v.  Coal  Co.,  42  Pa.  Super.  187,  1910;  (v)  where  error  is  to  re- 
fusal to  admit  notes  of  testimony  taken  in  other  proceedings,  proof 
that  witness  was  beyond  jurisdiction  or  for  other  reason  could  not  be 
produced,  should  be  printed:  Com.  v.  Williams,  41  Pa.  Super.  326, 

285 


PAPER-BOOKS. 


§190  (14) -§191  Judgment  on  Verdict  [Chap.  13, 

1910 ;  see  also  as  to  including  copy  of  documentary  evidence  in  assign- 
ments of  error,  §187,  note  (2). 

(14)  Pleadings,     (a)  If  pleadings  are  not  printed,  judgment  will 
be   affirmed   or  non-suit   entered :   Bartlett   v.   Kingan,   19   Pa.   341, 
1852;  Shamburg  v.  Abbott,  121  Pa.  443, 1888;  Rundell  v.  Kalbfus,  125 
Pa.  123,  1889 ;  Finch  v.  Conrade,  154  Pa.  326,  1893 ;  Talcott  v.  Oppen- 
heimer,  159  Pa.  506,  1895;  Nulton  v.  Campbell,  15  Pa.  Super.  151, 
1900;  Harris's  Petition,  15  Pa.  Super.  471,  1900;  Sailor  v.  Reamer, 
20  Pa.  Super.  597,  1902;  Oakland  Boro.  v.  Boyden,  22  Pa.  Super.  278, 
1902;  Updegraff  v.  Snyder,  36  Pa.  Super.  30,  1908;  (b)  this  rule  ap- 
plies with  special  force  to  plaintiff's  statement:  Richardson  v.  Gosser, 
26  Pa.  335,  1855;  McCoy  v.  Hance,  28  Pa.  149,  1857;  Whetstone  v. 
Bowser,  29  Pa.  59,  1857;  Thome  v.  Wharfflein,  100  Pa.  519,  1882;  Mc- 
Fadden  v.  Rausch,  119  Pa.  507,  1888;  McCahan  v.  Wharton,  121  Pa, 
424,  1888;  Murdock  v.  Martin,  147  Pa.  203,  1892;  Finch  v.  Conrade, 
154  Pa.  326,  1893;  Walter  v.  Sun  Fire  Office,  165  Pa.  381,  1895; 
Thompson  v.  Kaufman,  9  Pa.  Super.  305,  1899;  Com.  v.  Burns,  14  Pa. 
Super.  248;  1900;  Carson  v.  Hosiery  Co.,  15  Pa.  Super.  476,  1900; 
Morris  v.  Rapid  Tr.  Co.,  215  Pa.  317,  1906;  Quigley  v.  Ins.  Co.,  35 
Pa.  Super.  51,  1907;  (c)  and  to  affidavit  of  defence:  Ahl  v.  Goodhart, 
161  Pa.  455,  1894;  (d)  where  overruling  demurrer  is  assigned  as  error, 
demurrer  must  be  printed:  Bartlett  v.  Kingan,  19  Pa.  241,  1852;  (e) 
petition  for  transfer  of  liquor  license  must  be  printed:  Trimble's  Li- 
cense, 41  Pa.  Super.  370,  1910. 

(15)  Opinion,     (a)   Appeal  will  be  quashed  if  opinion  of  court 
below  is  not  printed:  Ahl  v.  Goodhart,  161  Pa.  455,  1894;  Warwick 
Iron  Co.  v.  McKeag,  205  Pa.  490,  1903 ;  Sanker  v.  R.  R.,  205  Pa.  609, 
1903 ;(b)  on  appeal  from  order  confirming  auditor's  report,  copy  of 
report  and  exceptions  thereto  and  also  decree  on   such   exceptions 
should  be  printed:  Fair's  Est.,  34  Pa.  Super.  263,  1907. 

§191. Judgment  on  Case  Stated.  Where  the  judg- 
ment is  on  a  case  stated  in  the  nature  of  a  special  verdict, 
the  facts  as  agreed  on  by  the  parties,  the  opinion  of  the 
court,  statement  of  the  questions  involved,  assignments  of 
error,  and  argument  of  counsel  will  be  sufficient.  Paper- 
books  in  cases  not  provided  for  in  these  rules  shall  conform 

286 


JUDGMENT  ON  CASE  STATED. 


§§  189-205]  Judgment  not  on  Verdict,  etc.  §§  191,  192 

as  nearly  to  said  rules  as  circumstances  will  admit.     Su- 
preme Court  Rule  32;  Superior  Court  Rule  22. 

(1)  Requirements  of  Paper-Book,  (a)  When  on  appeal  from  pro- 
ceedings on  case  stated  paper-book  contains  no  docket  entries,  no 
judgment  or  opinion  of  court  below,  and  no  assignments  of  error,  ap- 
peal will  be  quashed :  Warwick  Iron  Co.  v.  McKeag,  205  Pa.  490, 1 903 ; 
(b)  likewise  where  there  is  nothing  to  show  existence  of  pending 
suit:  Sturm  v.  Sawyer,  2  Pa.  Super.  254,  1896;  Forney  v.  Hunting- 
don Co.,  6  Pa.  Super.  397,  1898;  Dougherty  v.  Cumberland  Co..  22  Pa. 
Super.  591,  1903;  Hafer  v.  McKelvey,  23  Pa.  Super.  202,  1903;  (c) 
proceedings  must  be  printed  in  full:  Rounds  v.  Stevenson,  1  W.  N.  C. 
429,  1874.  For  other  cases  as  to  general  requirements,  see  preceding 
section. 

§192. Judgments  at  Law  not  Founded  on  Verdict 

or  Case  Stated.  In  all  cases  where  the  appeal  is  from  a 
final  judgment  at  law  in  the  common  pleas,  not  founded 
upon  a  verdict  or  on  a  case  stated,  the  paper-book  of  appel- 
lant shall  contain:  I.  Names  of  all  the  parties  as  they 
stood  on  the  record  of  the  court  below  at  the  time  of  the 
entry  of  the  judgment,  with  the  addition  of  the  word  "ap- 
pellant" after  the  name  of  the  party  taking  the  appeal,  and 
the  form  of  the  action.  2.  Abstract  of  the  record  showing 
the  exact  questions  presented  for  the  decision  of  the  court 
and  how  disposed  of.  3.  When  necessary,  a  certificate  of 
the  trial  judge  showing  the  amount  in  controversy  (See 
Rule  23  [§  117  (B)]).  4.  Statement  of  the  questions  in- 
volved (See  Rule  34  [§196].  5.  History  of  the  case  (See 
Rule  35  [§197]).  6.  Requests  for  findings  of  facts  and  law 
and  the  answers  thereto.  7.  Report  of  facts  and  law  by 
the  judge  sitting  without  a  jury.  8.  Exceptions  to  the  find- 
ings of  the  court.  9.  Opinion  filed.  10.  Judgment  of  the 
court,  ii.  Assignments  of  error  [§198].  12.  Brief  of  argu- 
ment of  appellant  (See  Rule  36  [§199]).  13.  Appendix, 
containing  the  record  in  full,  except  the  parts  thereof 

287 


PAPER-BOOKS. 


§  192  Judgment  not  on  Verdict,  etc.  [Chap.  13, 


printed  in  the  paper-book  proper,  and  unless  dispensed  with 
by  the  appellee,  the  evidence  submitted  in  the  court  below. 
14.  Copies  of  plans  or  drawings,  whenever  they  have  been 
used  in  the  court  below  and  are  necessary  for  a  correct  or 
ready  understanding  of  the  case  (See  Rules  24  [§156]  and 
39  [J89]).  Supreme  Court  Rule  30. 

In  all  cases  where  the  appeal  is  from  a  final  judgment 
at  law  in  the  common  pleas,  not  founded  upon  a  verdict  or 
on  a  case  stated,  the  paper-book  of  appellant  shall  contain : 
i.  Names  of  all  the  parties  as  they  stood  on  the  record  of 
the  court  below  at  the  time  of  entry  of  the  judgment,  with 
the  addition  of  the  word  "appellant"  after  the  name  of  the 
party  taking  the  appeal,  and  the  form  of  the  action.  2. 
Abstract  of  the  record  showing  the  exact  questions  pre- 
sented for  the  decision  of  the  court  and  how  disposed  of. 
3.  Statement  of  the  questions  involved  (See  Rule  23 
[§196]).  4.  History  of  the  case  (See  Rule  24  [§197]).  5. 
Requests  for  findings  of  facts  and  law  and  the  answers 
thereto.  6.  Report  of  facts  and  law  by  the  judge  sitting 
without  a  jury.  7.  Exceptions  to  the  findings  of  the  court 
8.  Opinion  filed.  9.  Judgment  of  the  court.  10.  Assign- 
ments of  error  [§198].  u.  Brief  of  argument  of  appellant 
(See  Rule  25  [§199]).  12.  Appendix,  containing  the  record 
in  full,  except  the  parts  thereof  printed  in  the  paper-book 
proper,  and,  unless  dispensed  with  by  the  appellee,  the  evi- 
dence submitted  in  the  court  below.  13.  Copies  of  plans 
or  drawings,  whenever  they  have  been  used  in  the  court 
below  and  are  necessary  for  a  correct  or  ready  understand- 
ing of  the  case  (See  Rules  21  [§156]  and  28  [§189]).  Su- 
perior Court  Rule  18. 

(1)  Contents  of  Paper-Book.    See  notes  to  §190. 

(2)  Record — Evidence,     (a)  On  appeal  from  taxation  of  costs,  en- 
tire record  must  be  brought  up  and  printed :  Irwin  v.  Hawthorn,  6  Pa. 

288 


EQUITY  AND  ORPHANS'  COURT. 


§§  189-205]  Contents  of  Paper-book  §  193 

Super.  165,  1897;  (b)  on  appeal  from  affirmance  of  landlord  and  ten- 
ant proceedings  before  justice  of  peace,  record  of  justice  must  be 
printed;  otherwise,  appeal  will  be  quashed:  Cunningham  v.  Everett, 
24  Pa.  Super.  469, 1904 ;  (c)  on  appeal  from  order  making  assignees  of 
portion  of  claim  prior  to  verdict  equitable  plaintiffs  in  suit,  evidence  is 
not  necessary  to  determine  question  involved,  and  need  not  be  printed : 
Beck  v.  Cricket  Club,  45  Pa.  Super.  358,  1911.  In  case  of  failure  of 
counsel  to  agree  as  to  necessity  of  printing  plans  and  drawings,  see 
§156,  above. 

(3)  Report  of  Auditor,  Referee  or  Judge.  Appeal  from  orphans' 
court  will  be  quashed  where  report  of  auditor  is  not  printed :  Price 's 
Est.,  45  Pa.  Super.  449,  1911;  see  also  §186,  note  (2),  and  §190,  note 
(15). 

§193. Equity  and  Orphans'  Court.     In  all  cases 

where  the  appeal  is  from  a  proceeding  in  equity  or  from 
a  proceeding  in  the  nature  thereof  in  the  court  of 
common  pleas,  or  from  the  orphans'  court,  the  ap- 
pellant's paper-book  shall  contain:  I.  Names  of  all 
parties  and  the  nature  of  the  proceedings,  including  the 
docket  entries.  2..  When  necessary,  a  certificate  of  the 
trial  judge  showing  the  amount  in  controversy  (See  Rule 
23  [§JI7  (B)]).  3.  Short  abstract  of  the  bill  or  petition 
and  answer.  4.  Statement  of  the  questions  involved  (See 
Rule  34  [§196]).  5.  History  of  the  case  (See  Rule  35 
[§I97D-  6.  Report  of  the  auditor,  referee  or  master,  if 
there  was  one.  7.  Requests  for  findings  of  fact  or  law  with 
the  answers  thereto,  and  the  findings  of  the  judge.  8.  Ex- 
ceptions taken  to  the  report  in  the  court  below.  9.  Opin- 
ion of  the  court  on  the  exceptions,  and  the  decree  made. 
10.  Assignments  of  error  [§198].  u.  Brief  of  argument 
of  appellant.  [§199]  12.  Appendix  containing  pleadings  in 
full,  including  any  other  opinion  of  the  court  below  filed  in 
the  case,  and  such  documentary  and  other  evidence  as  may 
be  necessary  (See  Rule  46  [§189].  13.  Copies  of  olans  or 
drawings,  whenever  they  have  been  used  in  the  court  be- 

289 

19 


PAPER-BOOKS. 


§193(1)  (2)  Equity  and  Orphans' Court  [Chap.  13, 

low  and  are  necessary  for  a  correct  or  ready  understand- 
ing of  the  case  (See  Rules  24  and  39  [§199]).  Supreme 
Court  Rule  31. 

In  all  cases  where  the  appeal  is  from  a  proceeding  in 
equity  or  from  a  proceeding  in  the  nature  thereof  in  the 
court  of  common  pleas,  or  from  the  orphans'  court,  the 
appellant's  paper-book  shall  contain:  i.  Names  of  the 
parties  and  the  nature  of  the  proceedings,  including  the 
docket  entries.  2.  Short  abstract  of  the  bill  or  petition  and 
answer.  3.  Statement  of  the  questions  involved  (See  Rule 
23  [§I96]).  4-  History  of  the  case  (See  Rule  24  [§197]). 
5.  Report  of  the  auditor,  referee  or  master,  if  there  was 
one.  6.  Requests  for  findings  of  facts  or  law  with  the  an- 
swers thereto,  and  the  findings  of  the  judge.  7.  Excep- 
tions taken  to  the  report  in  the  court  below.  8.  Opinion 
of  the  court  on  the  exceptions,  and  the  decree  made.  9. 
Assignments  of  error  [§198].  10.  Brief  of  argument  of 
appellant  [§199].  n.  Appendix,  containing  pleadings 
in  full,  including  any  other  opinion  of  the  court  below 
filed  in  the  case,  and  such  documentary  and  other  evidence 
as  may  be  necessary  (See  Rule  35  [§189]).  12.  Copies  of 
plans  or  drawings,  whenever  they  have  been  used  in  the 
court  below  and  are  necessary  for  a  correct  or  ready  un- 
derstanding of  the  case  (See  Rules  21  and  28  [§199]).  Su- 
perior Court  Rule  19. 

(1)  Auditor's   Report.     On   appeal   from   decree   dismissing   ex- 
ceptions   to    auditor's    report,   requirements    and    arrangement    pre- 
scribed in  appeals  in  equity  must  be  observed;  and  if  any  require- 
ments of  rule  are  disregarded,  appeal  will  be  quashed  or  non-suit  en- 
tered: Saxton's  Est.,  195  Pa.  459,  1900;  Mauk's  Est.,  195  Pa.  483, 
1900 ;  0  'Donnell  v.  Clements,  23  Pa.  Super.  447,  1903 ;  Moore  v.  Bisch- 
off,  25  Pa.  Super.  1,  1904. 

(2)  Exceptions  Must  be  Shown.    Appeal  from  award  must  show 
exceptions  taken:  Manley  v.  Okell,  19  Pa.  Super.  240,  1902. 

290 


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§§  189-205]  Quarter  Sessions  §  193  (3)-§  194 

(3)  Evidence.     "The  appellant  in  printing  his  paper-book,  has 
omitted  part  of  the  evidence  which  was  before  the  referee  and  the 
court  below.     This  was  in  clear  disregard  of  the  rule  of  the  court. 
Appellant  did  not  consider  the  omitted  portions  material,  and  they 
may  not  be  so,  but  among  them  is  part  of  the  cross-examination  of  the 
appellant  himself.   Appellee  objects  to  this  omission  and  the  court  is 
without  the  means  of  knowing  whether  the  omitted  testimony  is  ma- 
terial or  not.    There  are  no  doubt  many  cases  where  the  bulk  of  the 
paper-books    can    be   substantially   reduced,    to    the    advantage    and 
convenience  of  court  and  counsel,  by  the  omission  of  evidence  relat- 
ing to  matters  entirely  disconnected  with  any  question  involved  in  the 
appeal.     In  such  case  a  very  convenient  practice  followed  in  some 
states  is  to  indicate  the  omission  in  the  following  form:  'Here  the 
plaintiff  (or  defendant)   gave  evidence  tending  to  prove     .     .     .     .' 
specifying  the  subject  of  the  omitted  evidence  distinctly  and  in  posi- 
tive terms.    This  practice  would  be  recognized  by  the  court  as  conven- 
ient.   But  it  should  rest  on  the  agreement  of  counsel  for  both  par- 
ties that  the  omitted  portions  are  immaterial  or  irrelevant  to  all  the 
questions  involved  in  this  court.     Without  such  agreement,  counsel 
may  omit  matters  which  the  counsel  of  the  other  party  deem  ma- 
terial, and  the  court  not  being  in  position  to  decide  will  then  be 
obliged  to  enforce  the  rule  strictly,  as  we  must  do  in  the  present 
case:"  Mitchell,  J.,  in  Wilson  v.  Keller,  195  Pa.  98,  1900.    See  §156. 

(4)  Documentary  Evidence.    On  appeal  in  equity  all  documentary 
evidence  should  be  printed,  except  such  as  parties  agree  to  be  un- 
necessary: Brindle  v.  Brindle,  50  Pa.  387,  1865;  Lowenstein  v.  Ins. 
Co.,  132  Pa.  410,  1890.  In  case  of  failure  of  parties  to  agree  as  to  ne- 
cessity of  printing  plans  and  drawings,  see  §156,  above. 

For  further  cases  as  to  requirements  of  paper-books,  see  notes  to 
§190.    See  also  Appendix,  §58,  for  forms,  comments,  etc. 

§194. Quarter  Sessions  Court.  In  all  cases  where 

the  appeal  is  from  proceedings  in  the  court  of  quarter  ses- 
sions, and  not  provided  for  in  Rule  17,  the  paper-book  shall 
contain: 

i.  An  abstract  or  brief  of  all  the  petitions,  motions, 
orders,  reports,  exceptions,  etc.,  which  may  be  necessary 
to  give  the  court  here  a  full  view  of  the  record  at  once;  and 

291 


PAPER-BOOKS. 


§§  194-6  Quarter  Sessions,  etc.  [Chap.  13, 

this  in  the  precise  order  of  their  respective  dates,  and  with 
the  date  of  each  prefixed.  2.  The  exceptions  which  were 
overruled  or  sustained  by  the  final  order  or  judgment  of 
the  court.  3.  The  opinion  of  the  court,  if  it  were  filed  in 
writing.  4.  Assignments  of  error.  5.  The  statement  of 
the  questions  involved.  6.  The  argument.  7.  Appendix, 
containing  the  record  in  full,  and  copies  of  plans  or  draw- 
ings whenever  they  have  been  used  in  the  court  below  and 
are  necessary  for  a  correct  or  ready  understanding  of  the 
case.  (See  Rules  21,  28,  §§156,  189).  Super.  C.  Rule  20. 

(1)  Record  Must  be  Printed,     (a)  Where  record  is  not  printed  on 
appeal  from  quarter  sessions,  proceedings  will  be  affirmed:  LaPlume 
Boro.,  18  W.  N.  C.  82,  1886;  (b)  where  form  of  publication  of  notice 
is  material,  notice  must  be  printed  in  full :  Moosic  Boro.,  12  Pa.  Super. 
353,  1900;  (c)  where  it  is  alleged  that  sentence  in  criminal  case  was 
unauthorized  and  illegal,  some  reason  must  be  given  in  paper-book, 
or  assignment  will  not  be  considered:  Stevick  v.  Com.,  1  W.  N.  C. 
512,  1875;  (d)  an  order  of  court  to  which  exception  is  taken  must  be 
set  forth  in  full:  Benzinger  Twp.  Road,  135  Pa.  176,  1890;  see  also 
notes   to   §190,   above. 

(2)  "By"  read  "and."    "By,"  in  division  2,  above,  by  analogy, 
should,  it  seems,  read  "and."     The  phraseology  is  taken  from  rules 
adopted  Sept.  6,  1852. 

§195.  —  —  Certificate  of  Amount  in  Controversy. 
The  certificate  of  amount  in  controversy  must  be  printed 
in  the  appellant's  paper-book  in  all  cases  in  which  such  cer- 
tificate is  required  to  be  filed  by  Supreme  Court  Rule  23, 
§117  (B),  above. 

§196. Statement  of  Question  Involved.       The 

statement  of  the  question  involved  is  designed  to  enable 
the  court  to  obtain  an  immediate  view  of  the  nature  of  the 
controversy.  It  must  state  the  question  or  questions  in 
the  briefest  and  most  general  terms,  without  names,  dates, 
amounts  or  particulars  of  any  kind  whatever.  It  should 

292 


STATEMENT  OF  QUESTIONS  INVOLVED. 


§§  189-205]  Requirements  §  196 

not  ordinarily  exceed  ten  lines,  and  must  not,  under  any 
circumstances,  exceed  half  a  page.  This  rule  is  to  be  re- 
garded as  in  the  highest  degree  mandatory  and  admitting 
of  no  exception.  Supreme  Court  Rule  34;  Superior  Court 
Rule  23. 

(1)  Statement  of  Question  Necessary.    Where  appellant's  paper- 
book  does  not  contain  statement  of  question  involved,  it  will  be  sup- 
pressed and  appeal  quashed  or  non-pros  entered:  Fifth  Ward  B.  &  L. 
Asso.  v.  Boylan,  198  Pa.  250,  1901;  Manley  v.  Okell,  19  Pa.  Super. 
240,  1902;  Herlehy  v.  Shrader,  20  Pa.  Super.  240,  1902;  Sailor  v. 
Reamer,  20  Pa.  Super.  597,  1902;  Oakland  Boro.  v.  Boyden,  22  Pa. 
Super.   278,  1903;    Com.   v.   Kreinbrook,   23   Pa.   Super.   511,   1903; 
Roush's  Est.,  23  Pa.  Super.  652,  1903;  Bousquet's  Est.,  206  Pa.  534, 

1903;  H v.  T ,  208  Pa.  233, 1904;  Rabinowitz  v.  Kenah,  31  Pa. 

Super.  334,  1906;  McMellen  v.  Williamson,  32  Pa.  Super.  263,  1906. 

(2)  Requirements  of  Statement,     (a)  Averment  that  question  in- 
volved is  "the  correctness  of  answers  to  certain  of  defendant's  points; 
portions  of  the  charge  specially  assigned  as  error,"  is  not  in  com- 
pliance with  rule:  Jones  v.  Matheis,  17  Pa.  Super.  220,  1901;  (b)  nor 
that  it  is  "sufficiency  of  affidavit  of  defence:"  Devers  v.  Sollenberger, 
25  Pa.  Super.  64,  1904;  (c)  statement  which  merely  sets  forth  self-evi- 
dent  propositions  to  which  negative   answers  must   necessarily   be 
given  and  fails  to  cover  actual  questions  involved  or  indicate  ap- 
pellee's view  of  case,  does  not  meet  object  of  rule:  Swisher  v.  Sipps, 
19  Pa.  Super.  43,  1902;  International  S.  &  T.  Co.  v.  Kleber,  29  Pa. 
Super.  200,  1905;   (d)  statement  should  set  forth  grounds  of  objec- 
tion :  International  S.  &  T.  Co.  v.  Kleber,  29  Pa.  Super.  200, 1905 ;  (e) 
and  should  refer  to  questions  raised  by  assignments  of  error:  Henning 
v.  Keiper,  37  Pa.  Super.  488,  1909;  (f)  when  a  case  is  called  for  ar- 
gument, the  first  object  of  the  court  is  to  find  out  what  it  is  about; 
the  question  that  the  court  is  called  upon  to  consider.    In  the  pressure 
for  time,  this  must  be  done  rapidly,  and  if  the  real  question  cannot  be 
gathered  at  once  from  the  paper-books,  the  court  must  delay  or  lose 
part  of  counsel's  argument  while  picking  it  out  from  the  mass  of 
more  or  less  material  details  usually  included  in  the  history  of  the 
case.    The  requirement  of  a  statement  of  the  bare  question  involved, 
is  designed  to  remedy  this  inconvenience.    As  the  rule  in  regard  to  it 
will  be  most  strictly  enforced,  the  attention  of  counsel  is  specially 

293 


PAPER-BOOKS. 


§  196  (2)  (g)-§  197  History  of  Case  [Chap.  13, 

called  to  it:  Memorandum  to  Supreme  Court  Rule,  p.  15  (1900); 
(g)  statement  should  include  any  question  which,  though  unrelated  to 
main  matter  for  decision,  is  sufficiently  important  to  be  assigned  for 
error:  Willock  v.  R.  R.,  229  Pa.  326,  1911.  For  illustrations  showing 
what  is  required  in  statement  of  question,  see  Appendix,  §58  (A). 

(3)  Statement  Limited  to  Half  Page,  (a)  The  provision  limiting 
statement  to  half  a  page  is  mandatory  and  violation  thereof  will  war- 
rant suppression  of  paper-book  and  entry  of  non-pros:  Van  Sciver  v. 
McPherson,  199  Pa.  331,  1901;  Swisher  v.  Sipps,  19  Pa.  Super.  43, 
1902;  H.  v.  T.,  208  Pa.  233,  1904;  Creachen  v.  Carpet  Co.,  214  Pa.  15, 
1906;  McMellen  v.  Williamson,  32  Pa.  Super.  263,  1907;  Com.  v. 
Strail,  220  Pa.  483,  1908;  (b)  statement  covering  seventeen  lines  has 
been  held  sufficient:  Ripka  v.  Ins.  Co.,  36  Pa.  Super.  517,  1908;  (c) 
but  one  covering  twenty-nine  lines  not :  Van  Sciver  Co.  v.  McPherson, 
199  Pa.  331,  1901 ;  (d)  or  a  whole  page :  Cayuga  B.  &  L.  Asso.  v.  Mac- 
Mullen,  46  Pa.  Super.  94,  1911. 

§197.  —  History  of  Case.    The  history  of  the  case 

must  contain  a  closely  condensed  statement  of  all  the  facts 
of  which  a  knowledge  may  be  necessary  in  order  to  deter- 
mine the  points  in  controversy  here,  but  must  not  contain 
any  argument  or  any  portion  of  the  testimony.  Supreme 
Court  Rule  35 ;  Superior  Court  Rule  24. 

(1)  History  of  Case,  (a)  The  history  of  the  case  should  make  no 
statements  not  justified  by  evidence:  Levin  v.  Traction  Co.,  194  Pa. 
156,  1899;  (b)  and  should  not  be  argumentative:  Rafferty  v.  Don- 
nelly, 197  Pa.  423,  1900;  Slater  v.  Slater,  209  Pa.  194,  1904;  (c)  nor 
of  undue  length:  Slater  v.  Slater,  209  Pa.  194,  1904;  (d)  on  appeal 
from  judgment  of  court  on  rule  for  judgment  for  want  of  sufficient 
affidavit  of  defense,  only  statement  and  affidavit  of  defense  can  be 
considered  and  history  of  case  is  unnecessary:  Hutton  v.  McLaughlin, 
1  Pa.  Super.  642,  1896;  (e)  if  affidavit  does  not  go  to  merits  of  case 
but  only  to  sufficiency  of  statement,  facts  not  appearing  in  statement 
should  not  be  set  forth  in  defendant's  history  of  case  and  brief  of 
argument:  De  Cou  Bros.  v.  Englander,  39  Pa.  Super.  243,  1909;  (f) 
paper-book  is  defective  if  it  does  not  contain  history  of  case :  Com.  v. 
Cummings,  45  Pa,  Super.  211,  .1911. 

294 


PAPER-BOOKS. 


§§  189-205]  Assignments  of  Error  §  198  (1) 

§198. Assignments  of  Error.  When  the  error  as- 
signed is  to  the  admission  or  rejection  of  evidence,  or  to 
the  striking  out  or  refusal  to  strike  out  evidence,  the  speci- 
fication must  quote  the  questions  or  offers,  the  ruling  of 
the  court  thereon,  and  the  evidence  admitted,  or  rejected, 
stricken  out,  or  which  the  court  refuses  to  strike  out,  to- 
gether with  a  reference  to  the  page  of  the  paper-book  or 
appendix  where  the  matter  may  be  found  in  its  regular 
order  in  the  printed  evidence  or  notes  of  trial.  When  the 
error  alleged  is  the  admission  or  rejection  of  a  writing,  a 
full  copy  of  the  writing  must  be  printed  in  the  paper-book. 
Any  assignment  of  error  not  according  to  this  and  the 
rule  immediately  preceding  will  be  disregarded.  Supren  e 
Court  Rule  28;  Superior  Court  Rule  16. 

When  in  the  printed  copy  of  the  assignments  of  error  or 
in  the  printed  argument  reference  is  made  to  the  testimony, 
to  the  charge  of  the  court,  or  to  other  matter  appearing 
upon  the  record,  the  pages  must  be  stated  where  the  mat- 
ter referred  to  is  to  be  found  in  the  paper-book  or  appendix. 
Supreme  Court  Rule  39;  Superior  Court  Rule  28. 

(1)  Evidence  Must  be  Printed,  (a)  Court  will  not  consider  as- 
signments based  on  testimony  not  printed  in  paper-book:  Brook  v. 
Church,  135  Pa.  137,  1890;  Saxton's  Est.,  195  Pa.  459,  1900;  see  also 
cases  §187,  note  (1) ;  (b)  it  is  not  enough  that  the  text  of  assign- 
ment be  supplemented  by  evidence  set  out  in  appendix:  London  As- 
surance Co.  v.  Russel,  1  Pa.  Super.  320,  1896 ;  Wfraley  v.  Bank,  28  Pa. 
Super.  531,  1905;  see  also  cases  §187,  note  (1)  (f) ;  (c)  when  error  as- 
signed is  refusal  of  court  to  submit  case  to  jury,  whole  evidence  must 
be  printed:  Davenport  v.  Wright,  51  Pa.  292,  1865;  Sorg  v.  St.  Paul's 
Congregation,  63  Pa.  156,  1869;  (d)  where  assignments  are  not  print- 
ed, appeal  will  be  quashed:  Com.  v.  Kreinbrook,  23  Pa.  Super.  511, 
1903;  (e)  court  may,  in  its  discretion,  permit  amendment  of  assign- 
ment at  bar:  Zimmerman  v.  Camp,  155  Pa.  152,  1893;  Swope  v.  Don- 
nelly, 190  Pa.  417,  1899;  (f)  where  assignment  is  to  refusal  of  new 

295 


PAPER-BOOKS. 


§198  (2) -§199  Assignments — Argument  [Chap.  13, 

trial,  reasons  on  which  motion  was  based  must  be  printed:  Moyer  v. 
Phillips,  40  Pa.  Super.  1,  1909;  cf.  §185,  note  (2)   (d). 

(2)  Reference  to  Page.    Page  of  paper-book  must  be  given:  De 
Roy  v.  Richards,  8  Pa.  Super.  119,  1898;  Cameron  v.  Traction  Co.,  216 
Pa.  191,  1907;  Boyce  v.  Asso.,  218  Pa.  494,  1907;  American  Car  Co. 
v.  R.  R.,  218  Pa.  519,  1907;  Downey  Bros.  v.  R.  R.,  219  Pa.  32,  1907; 
Kalin  v.  Wehrle,  36  Pa.  Super.  305,  1908;  Com.  v.  Yocum,  37  Pa. 
Super.  237,  1908;  see  also  §187,  note  (1)  (g). 

(3)  Writings  Must  be  Printed,     (a)  When  alleged  error  is  as  to 
admission  of  certain  papers,  copy  thereof  must  be  printed:  Com.  v. 
Johnson,  5  Pa.  Super.  585,  1897;  Cycle  Co.  v.  Jones,  12  Pa.  Super. 
135,  1899;  Jenkinson  v.  Eggers,  28  Pa.  Super.  151,  1905;  Creachen  v. 
Carpet  Co.,  214  Pa.  15,  1906;  (b)  where  error  assigned  is  certain  order 
of  court,  order  must  be  set  forth  in  full :  Township  Road,  135  Pa.  176, 
1890;  Arnold  v.  Car  Co.,  212  Pa.  303,  1905;  see  also  §190,  note  (13). 
For  general  principles  governing  assignments  of  error,  see  §§183-8. 

(4)  Forms.    See  Appendix,  §58  (A). 

§199. Brief  of  Argument.  The  brief  of  the  argu- 
ment must  contain  a  clear  statement  of  the  points  on  which 
the  party  relies,  with  such  reasons  and  arguments  as  he 
may  see  proper  to  add,  together  with  all  the  authorities 
which  he  thinks  pertinent.  Where  the  error  assigned  is  to 
the  finding  of  fact  by  an  auditor  or  master,  the  printed  ar- 
gument shall  contain  a  synopsis  of  all  the  evidence  bearing 
upon  such  disputed  question  of  fact  with  reference  to  the 
page  or  pages  of  the  appendix  of  the  paper-book  where 
such  evidence  may  be  found  in  extenso.  Supreme  Court 
Rule  36;  Superior  Court  Rule  25. 

When  in  the  printed  copy  of  the  assignments  of  error  or 
in  the  printed  argument  reference  is  made  to  the  testimony, 
to  the  charge  of  the  court  or  other  matter  appearing  upon 
the  record,  the  pages  must  be  stated  where  the  matter 
referred  to  is  to  be  found  in  the  paper-book  or  appendix. 
Supreme  Court  Rule  39;  Superior  Court  Rule  28. 

(1)  General  Form  and  Contents  of  Brief,  (a)  Where  appellant's 

296 


PAPER-BOOKS. 


§§189-205]  Arguments Authorities  §  199  (1)  (b)-§  200 

paper-book  contains  no  argument  in  support  of  specifications  of  error, 
appeal  will  be  dismissed:  Stockdale  v.  Maginn,  131  Pa.  507,  1890; 
(b)  argument  should  be  divided  so  as  to  apply  separately  to  different 
specifications  of  error ;  this  is  much  more  effective  than  treating  whole 
subject  as  general  theme:  Edenburg  Poor  Dist.  v.  Strattonville  Poor 
Dist.,  5  Pa.  Super.  516,  522,  1897;  (c)  where  language  of  argument 
reflects  on  court  below,  or  on  counsel  for  opposite  side,  paper-book 
may  be  suppressed:  Palethorp  v.  Whitaker,  1  W.  N.  C.  163,  1873;  (d) 
or  where  it  reflects  on  master  in  equity:  Matthew's  Ap.,  13  W.  N.  C. 
502,  1883;  (e)  or  on  an  attorney  in  the  case:  Williams  v.  Phila.,  208 
Pa.  282,  1904;  (f)  instead  of  suppressing  paper-book,  scandalous 
matter  may  be  ordered  expunged  from  record :  Williams  v.  Phila.,  208 
Pa.  282,  1904;  (g)  where  appeal  is  from  refusal  of  motion  for  new 
trial,  reasons  given  in  support  of  motion  must  be  printed :  Hentzler  v. 
Weniger,  32  Pa.  Super.  164,  1907;  (h)  if  affidavit  of  defense  does  not 
go  to  merits  of  case  but  only  to  sufficiency  of  statement,  facts  not  ap- 
pearing in  statement  should  not  be  inserted  in  defendant's  brief  of 
argument :  De  Cou  Bros.  v.  Englander,  39  Pa.  Super.  243, 1909. 

(2)  Citation  of  Authorities.    See  §200,  below;  App.,  §58  (A),  X. 

(3)  Synopsis  Necessary.     On  appeal  from  findings  of  fact  by 
master,  if  argument  does  not  contain  synopsis  of  evidence,  with  re- 
ference to  pages  where  evidence  may  be  found  in  ertenso,  appeal  will 
be  dismissed :  Silliman  v.  Kuhn,  142  Pa.  461, 1891. 

§200. Citation  of  Authorities.  When  authorities 

are  cited  the  principle  intended  to  be  sustained  by  each  case 
must  be  stated.  Cases  of  this  court  decided  since  the  com- 
mencement of  the  State  Reports  and  cases  of  the  Superior 
Court  must  be  cited  by  the  volume  of  the  Official  Reports. 
Wherever  decisions  of  said  courts  are  cited  from  legal 
periodicals,  they  must  be  accompanied  by  the  certificate  of 
counsel,  inserted  at  the  end  of  the  argument  but  not  in  the 
body  thereof,  that  said  cases  have  not  been  reported  in  the 
Official  Reports.  Whenever  a  statute  is  cited,  the  refer- 
ence shall  be  to  the  pamphlet  laws  and  also  to  a  standard 
digest  in  which  it  may  be  found.  Supreme  Court  Rule  37. 

When  authorities  are  cited,  the  principle  intended  to  be 

297 


PAPER-BOOKS. 


§  200  Citation  of  Authorities  [Chap.   13, 

sustained  by  each  case  must  be  stated.  Cases  of  the  Su- 
preme Court  decided  since  the  commencement  of  the  State 
Reports,  and  cases  of  this  court,  must  be  cited  by  the 
volume  of  the  official  reports.  Wherever  decisions  of  said 
courts  are  cited  from  legal  periodicals,  they  must  be  ac- 
companied by  the  certificate  of  counsel,  inserted  at  the 
end  of  the  argument  but  not  in  the  body  thereof,  that  said 
cases  have  not  been  reported  in  the  official  reports.  When- 
ever a  statute  is  cited,  the  reference  shall  be  to  the  pamph- 
let laws  and  also  to  a  standard  digest  in  which  it  may  be 
found.  Superior  Court  Rule  26. 

(1)  Accuracy  in  Preparing  Paper-Book,  (a)  "Care  and  accuracy 
in  the  preparation  of  paper-books  is  as  much  a  professional  duty  as 
pointed  and  logical  presentation  of  the  client's  cause.  While  not 
seldom  many  authorities  are  cited  which  have  little  or  no  bearing  on 
the  questions  to  be  decided,  still  our  duty  requires  of  us  an  examina- 
tion of  all  those  which  counsel  point  out  to  us  as  sustaining  his  ar- 
gument. In  view  of  this,  he  should  correctly  give  us  the  volume,  page 

and  names  of  the  parties  in  each  citation The  duty  of 

counsel  to  secure  accuracy  is  just  as  imperative  in  reading  proof  as 
in  the  preparation  of  manuscript;  if  they  neglect  to  do  either,  it  is 
often  impossible  for  us  to  give  to  their  causes  that  critical  examina- 
tion their  importance  demands:"  Dean,  J.,  in  Tanney  v.  Tanney,  159 
Pa.  277,  286,  1893.  (b)  "In  citing  reports,  the  names  of  the  parties 
and  the  page  of  the  book  where  the  case  begins,  should  be  carefully 
and  accurately  given,  and  not  the  page  merely  where  the  principle 
cited  is  to  be  found.  Dates  should  be  scrupulously  given.  Errors  in 
this  particular  are  often  embarrassing,  as,  in  writing  opinions,  the 
judges  often  cannot  have  the  records  before  them  to  refer  to.  Re- 
missness  in  correcting  the  proofs  of  paper-books  is  also  very  often 
a  noticeable  feature  of  some  practitioners.  First  impressions  of  slov- 
enly work  are  never  very  favorable  to  the  party  presenting  it,  and 
this  ought  to  be  sedulously  guarded  against.  If  nothing  else,  a  de- 
cent respect  for  the  court  ought  to  cause  reasonable  care  in  this  par- 
ticular:" Thompson,  C.  J.,  in  Burkholder  v.  Stahl,  58  Pa.  371,  379, 
1868. 

298 


PAPER-BOOKS. 


§§  189-205]  Appeals  from  Superior  Court  §§  200,  201 

(2)  Principles  to  be  Proved  to  be  Stated.   No  rule  is  more  impor- 
tant than  that  requiring  reference  to  principles  intended  to  be  proved 
by  authorities  cited.     The  reason  of  the  rule  is  to  enable  judges  of 
appellate    court   at   once,    without   resort    to   the   books   themselves, 
which  is  not  possible  during  arguments,  to  see  what  bearing  the  prin- 
ciple is  to  have  on  facts,  or  whether  or  not  it  supports  the  position 
contended  for,  and  if  so,  whether  it  will  affect  the  general  result  of 
the  case :  Burkholder  v.  Stahl,  58  Pa.  371,  379,  1868.    See  address  by 
Justice  Miller  on  Use  and  Value  of  Authorities,  121  Pa.  XIX. 

(3)  Pennsylvania  Cases  Required.     "The  paper-book  of  the  ap- 
pellant is  open  to  just  complaint.    In  a  rather  full  brief  of  cases  from 
other  states  not  a  single  Pennsylvania  decision  is  referred  to,  al- 
though,  as  this  opinion  shows,  there   are  several  which   are  much 
closer  in  point  than  any  of  those  cited,  and  they  are  of  course  much 
more  authoritative  with  us  than  those  of  other  states,  however  well 
reasoned.    In  the  pressure  of  business  on  this  court  we  ought  not  to 
be  called  on  to  do  counsel's  work.    It  is  not  always  possible  to  recall 
at  once  even  cases  with  which  we  are  familiar,  and  we  should  be 
able  to  rely  on  counsel  for  reference  at  least  to  everything  relevant 
and  material  in  our  own  reports.    Counsel  who  neglect  this  duty  take  a 
risk  not  fair  either  to  the  court  or  their  client : ' '  Mitchell,  J.,  in  Dug- 
gan  v.  B.  &  0.  R.  R.,  159  Pa.  248,  256, 1893. 

(4)  Citing  by  Reporter's  Name.    If  Pennsylvania  cases  are  cited 
by  name  of  reporter,  in  violation  of  rule,  paper-book  will  be  sup- 
pressed: Farquhar  v.  McAlevy,  142  Pa.  233,  1891. 

§201. Appeals  from  Superior  Court.  Paper-books 

on  appeals  from  the  Superior  Court  shall  contain  the  peti- 
tion and  the  order  allowing  the  appeal,  the  opinion  of  the 
Superior  Court,  the  dissenting  opinion  or  opinions,  if  any, 
and  assignments  of  error  to  the  judgment  of  the  Superior 
Court.  If  it  is  desired  to  use  the  paper-books  used  in 
the  Superior  Court,  they  shall  have  a  prefatory  or  supple- 
mentary addition  containing  the  matters  hereby  required. 
Supreme  Court  Rule  33. 

Assignments.    See  §188  and  notes. 

299 


PAPER-BOOKS. 


§§202,203  Appellee's  Book — Service — Copies  [Chap.  13, 

§202.  —  Paper-Book  of  Appellee.  The  paper-book  of 
the  appellee  may,  if  he  chooses,  contain  no  more  than  his 
argument.  But  he  may  at  his  option  make  a  counter-state- 
ment of  the  question  involved,  and  also,  separately,  a  his- 
tory of  the  case  with  the  facts  as  he  claims  them  to  be. 
Supreme  Court  Rule  38;  Superior  Court  Rule  27. 

(1)  Printing  Evidence  by  Appellee,     (a)  Appellee  cannot  be  com- 
pelled to  print  evidence:  Solts's  Ap.,  4  W.  N.  C.  298, 1877;  (b)  but  if 
he  does  print  evidence  that  should  have  been  printed  by  appellant, 
latter  may  be  ordered  to  pay  for  printing:  Solts's  Ap.,  4  W.  N.  C. 
298, 1877;  Wharmby's  Ap.,  4  Kulp.  23, 1885.    See  also  Act  1911,  §156, 
above. 

(2)  Form  for  Appellee's  Paper-Book.    For  directions  as  to  forms 
for  appellee's  paper-book,  see  Appendix,  §58  (K). 

§203.  Service —  (A)  Generally  —  Number  of  Copies 
to  be  Furnished.  In  all  cases,  except  those  originat- 
ing in  the  county  of  Philadelphia,  the  appellant  shall 
serve  a  copy  of  his  paper-book  on  the  opposite  party, 
or  his  attorney,  at  least  twelve  days  before  the  day 
appointed  for  hearing  the  cases  from  the  county  where  the 
cause  was  tried;  and  the  appellee  shall  serve  a  copy  of  his 
paper-book  on  the  opposite  party,  or  his  attorney,  at  least 
five  days  before  the  time  appointed  for  hearing  as  afore- 
said. But  if  the  appeal  shall  have  been  taken  thirty  days 
or  more  before  the  day  assigned  for  the  hearing  as  afore- 
said, the  paper-book  of  the  appellant  shall  be  served  at  least 
twenty  days,  and  that  of  the  opposite  party  at  least  five 
days,  before  the  days  assigned  for  the  hearing  of  said 
causes.  Supreme  Court  Rule  41 ;  Superior  Court  Rule  30. 

When  a  cause  is  called  for  argument,  each  party  shall 
furnish  one  copy  of  his  paper-book  to  each  of  the  judges, 
and  eleven  to  the  prothonotary,  two  for  the  Reporter,  one 
for  the  Law  Association  of  Philadelphia,  one  for  the  State 

300 


PAPER-BOOKS. 


§§  189-205]  Copies — Criminal     Cases— Phila.  Co.  §§  203,  204 

Library,  one  for  the  Legal  Intelligencer,  one  for  the  West 
Publishing  Company,  two  for  his  office,  one  for  the  office 
of  the  court  in  each  of  the  other  districts,  and  one  for  the 
Records.  Supreme  Court  Rule  42. 

When  a  cause  is  called  for  argument,  each  party  shall 
furnish  one  copy  of  his  paper-book  to  each  of  the  judges, 
and  eleven  to  the  prothonotary — one  for  his  office,  two 
for  the  Reporter,  one  for  the  Law  Association  of  Philadel- 
phia, one  for  the  Allegheny  County  Law  Library,  one  for 
the  State  Library,  one  for  the  Legal  Intelligencer,  one  for 
Advance  Notes,  one  for  the  Hirst  Free  Law  Library,  and 
two  for  the  court  crier.  Superior  Court  Rule  31. 

(1)  Number  of  Copies  of  Paper-Book.  At  least  fifty  copies  of  the 
paper-book  should  be  ordered.  This  provides  for  any  demand  which 
might  arise  for  extra  copies  in  the  attorney's  own  office  and  also  al- 
lows him  to  meet  reasonable  requests  for  extra  copies  by  other  par- 
ties to  the  suit  or  by  lawyers  or  legal  publishers  interested  in  the 
questions  involved. 

—  (B)  —  Criminal  Cases.  The  appellant  shall  serve  his 
paper-books  on  the  proper  district  attorney  ten  days  before 
the  day  assigned  for  the  hearing,  and  the  appellee  shall  serve 
his  three  days  before  the  hearing.  Supreme  Court  Rule  13. 

The  appellant  shall  serve  his  paper-books  on  the  proper 
district  attorney  or  in  case  of  appeal  by  the  commonwealth 
on  defendant  or  his  counsel,  ten  days  before  the  day  as- 
signed for  the  hearing,  and  the  appellee  shall  serve  his 
three  days  before  the  hearing.  Superior  Court  Rule  7. 

§204. — Philadelphia  County.  In  cases  returnable  to 
the  first  argument  period  for  the  county  of  Philadelphia, 
the  appellant  shall  serve  a  copy  of  his  paper-book  on  the 
opposite  party,  or  his  attorney  not  later  than  December 
i/th.  The  appellee  shall  serve  a  copy  of  his  paper-book 

301 


PAPER-BOOKS. 


§§  204,  205  Phila.  County — Non-Suit  [Chap.  13, 

on  the  opposite  party,  or  his  attorney,  at  least  five  days 
before  the  argument,  furnish  a  copy  to  each  judge,  and 
eleven  to  the  prothonotary  for  the  same  purposes  as  the 
paper-books  of  the  appellant. 

In  cases  returnable  to  the  second  argument  period  for 
the  county  of  Philadelphia,  appellant's  paper-books  shall  be 
served  on  or  before  the  fifteenth  day  preceding  the  first 
day  of  the  said  period,  and  the  appellee's  paper-book  shall 
be  served  within  ten  days  thereafter.  Supreme  Court  Rule 
40. 

In  cases  returnable  to  the  first  argument  period  for  the 
county  of  Philadelphia,  the  appellant  shall  serve  a  copy  of 
his  paper-book  on  the  opposite  party,  or  his  attorney  of 
record,  at  least  ten  days  before  the  first  day  of  the  week  to 
which  the  case  is  assigned  for  argument.  The  appellee 
shall  serve  a  copy  of  his  paper-book  on  the  opposite  party, 
or  his  attorney,  at  least  five  days  before  the  argument,  fur- 
nish a  copy  to  each  judge,  and  eleven  to  the  prothonotary 
for  the  same  purposes  as  the  paper-books  of  the  appellant. 
In  cases  returnable  to  the  December  period  for  the  county 
of  Philadelphia,  appellant's  paper  book  shall  be  served  on 
or  before  the  fifteenth  day  preceding  the  first  day  of  the 
said  period,  and  the  appellee's  paper-book  shall  be  served 
within  ten  days  thereafter.  Superior  Court  Rule  29. 

§205.  Penalty  for  Non-Compliance  with  Rules— Non- 
Suit.  When  the  appellant  is  in  default  according  to  these 
rules,  he  may  be  non-suited  on  motion ;  and  when  the  ap- 
pellee is  in  default,  he  will  not  be  heard  except  by  special 
indulgence  of  the  court.  Supreme  Court  Rule  43 ;  Super- 
ior Court  Rule  32. 

When  paper-books  are  furnished  which  differ  in  any  ma- 
terial respect  from  those  here  prescribed,  the  parties  fur- 

302 


PAPER-BOOKS. 


§§  189-205]  Penalty  for  Non-Compliance  §  205 

nishing  them  shall  be  considered  in  the  same  default  as  if 
none  had  been  furnished,  and  on  a  proper  occasion  the 
court  will,  of  its  own  motion,  non-suit  or  silence  the  default- 
ing party,  or  suppress  the  paper-book.  Supreme  Court 
Rule  44;  Superior  Court  Rule  33. 

(1)  When  Non-Suit  Will  be  Entered.     The  decision  as  to  when 
non-suit  will  be  entered  or  paper-book  suppressed  will  be  found  under 
respective  sections  of  this  chapter. 

(2)  Paper-Book  Should  not  Include  More  than  One  Case.    Appeals 
in  different  actions  in  which  there  are  different  counsel  and  different 
parties  should  not  be  combined  in  one  paper-book:  Philadelphia  v. 
Merklee,  159  Pa.  515, 1894. 


303 


HEARING  OF  CASES. 


Synopsis  of  Chapter  [Chap.  14, 


CHAPTER  XIV. 

HEARING  OF    CASES. 

§206.    Argument  List — Supreme  Court. 

(A)  Appeals  from  Lower  Courts. 

(B)  Appeals  from  Superior  Court. 
§207.        Superior  Court. 

§208.        Call    of    Cases— Absence    of  Parties— Non-Pros—Supreme 

and  Superior  Courts. 

§209.        Weekly  List — Assignment  of  Cases — Supreme  Court. 
§210.            Superior  Court. 

§211.        Daily  List — Cases  to  be  Non-Prossed  if  not  Argued — Su- 
preme and  Superior  Courts. 

§212.  Short  Causes — Supreme  Court. 

§213.  Superior  Court. 

§214.  Certificate  of  Counsel— Notice  of  Transfer. 

§215.  Objection  by  Opposing  Counsel. 

§216.  Time  for  Hearing. 

§217.  Time  Allowed  for  Argument. 

§218.  Criminal  Cases — Supreme  Court — Murder  in  First  Degree. 

§219.  Superior  Court. 

§220.  Continuance — Allowed  Only  for  Cause — Supreme  and  Su- 
perior Courts. 

§221.  Passing  Case  on  List — Supreme  and  Superior  Courts. 

§222.  Argument — Order  of  Hearing — Superior  Court. 

§223.  Time  Allowed— Supreme  Court. 

§224.  Ex  Parte — Supreme  and  Superior  Courts. 

§225.  Re-argument — Motion — Attaching  Copy  of  Opinion. 

§226.  Eule  for  New  Trial  Nunc  Pro  Tune  in  Murder  Cases — Petition. 

§227.  Agreements  and  Notices  of  Attorneys  to  be  in  Writing. 

304 


HEARING  OF  CASES. 


§§  206-227]  Argument  List — Call  of  Cases 

§206.  Argument  List — Supreme  Court — (A)  Appeals 
from  lower  Courts.  All  cases  shall  be  placed  upon  the 
argument  list  for  the  proper  county  next  succeeding  their 
entry,  unless  otherwise  specially  ordered  by  the  court;  pro- 
vided, that  no  case  shall  be  placed  on  the  argument  list 
where  the  appeal  shall  not  have  been  taken  twenty  days 
before  the  return  day.  Supreme  Court  Rule  48. 

(B)  Appeals  from  Superior  Court.  All  appeals 

in  civil  and  criminal  cases  from  the  Superior  Court  to  this 
court  shall  be  placed  at  the  head  of  the  list  for  the  third 
argument  week  after  the  appeal  has  been  allowed,  and  if 
the  court  is  then  sitting  in  another  district,  the  prothono- 
tary  shall  promptly  certify  it  to  that  district.  Supreme 
Court  Rule  22. 

(1)     Criminal  Cases.    For  rule  as  to  criminal  cases,  see  §218. 

§207.  —  Superior  Court.  All  cases  shall  be  placed  upon 
the  argument  list  for  the  proper  county  next  succeeding 
their  entry,  unless  otherwise  specially  ordered  by  the  court; 
provided,  that  no  case  shall  be  placed  on  the  argument  list 
where  the  appeal  shall  not  have  been  taken  twenty 
days  before  the  return  day.  Superior  Court  Rule  38. 

(1)     Criminal  Cases.    For  rule  as  to  criminal  cases,  see  §219. 

§  208. — Call  of  Cases — Absence  of  Parties — Non-Pros — 
Supreme  and  Superior  Courts.  Cases  will  be  called  for  ar- 
gument in  the  order  in  which  they  stand  on  the  printed  ar- 
gument list.  If  neither  party  be  present  or  ready  to  pro- 
ceed with  the  argument,  the  case  shall  be  non-prossed,  un- 
less reason  to  the  contrary  be  shown  to  the  satisfaction  of 
the  court.  Supreme  Court  Rule  49;  Superior  Court  Rule 

39- 

(1)  Preliminary  Call.  A  preliminary  call  of  the  list  will  be  made 
at  the  opening  of  court  on  the  return-day,  immediately  after  motions 

305 

20 


HEARING  OF  CASES. 


§§  209,  210  Call  of  Cases— Weekly  List  [Chap.  14, 

for  admission  to  the  bar  are  heard.  When  cases  are  to  be  continued 
or  non-prossed  by  consent,  counsel  should  so  state  when  the  case  is 
called.  When  objection  is  made,  motions  to  non-pros,  etc.,  will  not  be 
considered  until  after  the  list  has  been  called  through.  Cases  not 
answered  to  will  be  marked  for  argument.  Motions  to  quash  will 
usually  be  heard  with  argument  of  case. 

(2)  Call  for  Argument.    Cases  will  be  called  in  their  order  on  the 
list :  see  §211.    Counsel  who  are  unable  to  be  present  should  furnish  a 
memorandum  of  excuse  to  the  prothonotary  or  his  deputy:  see  §221. 

(3)  Taking  Off  Non-Pros.    Petitions  for  rules  to  show  cause  why 
non-pros  should  not  be  taken  off  may  be  presented  at  any  opportune 
time,  and  the  rules  are  usually  returnable  to  the  following  Monday. 
As  a  rule  no  argument  is  heard. 

§209.  —  Weekly  List — Assignment  of  Cases — Supreme 
Court.  Sixty  causes  shall  be  assigned  to  each  week,  and  a 
list  thereof  shall  be  made  up  and  published  by  the  pro- 
thonotary on  the  Saturday  preceding;  said  causes  shall  be 
set  down  in  the  order  of  their  term  and  number,  and  shall 
be  numbered  on  said  list  consecutively.  The  first  twelve 
cases  on  said  weekly  list  shall  be  assigned  for  argument  on 
Monday,  and  for  each  succeeding  day  of  the  week,  except 
Saturday,  the  first  twelve  cases  theretofore  undisposed  of 
on  said  list  shall  be  assigned  for  argument.  Supreme  Court 
Rule  51. 

(1)  Making  Up  List.  Criminal  cases  are  placed  at  head  of  list 
(see  §§218  and  219)  and  cases  from  other  districts  are  placed  next  in 
order.  With  these  two  exceptions,  the  lists  are  made  up  in  accord- 
ance with  above  rule.  In  proceedings  against  attorneys  under  Act 
May  19,  1879,  P.  L.  66,  1  Purd.  375,  pi.  15,  §53,  above,  such  cases  may 
be  placed  at  the  head  of  the  list  after  homicide  cases,  in  any  district 
in  which  the  court  may  be  sitting. 

§210. Superior  Court.     Sixty  causes  shall  be 

assigned  to  each  week,  and  a  list  thereof  shall  be  made  up 
and  published  by  the  prothonotary,  on  the  Saturday  pre- 
306 


HEARING  OF  CASES. 


§§206-227]  Weekly,  Daily,  Short  Cause  List  §§210-214 

ceding;  said  causes  shall  be  set  down  in  the  order  of  their 
term  and  number,  and  shall  be  numbered  on  said  list  con- 
secutively. The  first  twelve  cases  on  said  weekly  list  shall 
be  assigned  for  argument  on  Monday,  and  for  each  suc- 
ceeding day  of  the  week,  except  Saturday,  the  first  twelve 
cases  theretofore  undisposed  of  on  said  list  shall  be  as- 
signed for  argument.  Superior  Court  Rule  40. 

§211.  —  Daily  List — Cases  to  be  Non-Prossed  if  not 
Argued — Supreme  and  Superior  Courts.  The  list  shall  be 
made  up  each  day  at  3  o'clock  for  the  following  day,  and 
cases  on  that  list  must  be  argued  or  non-prossed  when 
called.  Supreme  Court  Rule  53;  Superior  Court  Rule  42. 

(1)     Passing  Gases  on  List.    See  §221. 

§212.  —  Short  Causes — Supreme  Court.  The  pro- 
thonotary  of  each  district  shall  keep  a  separate  list  for 
short  causes.  Supreme  Court  Rule  54. 

§213. Superior  Court.    No  short  list  or  hour  list, 

as  provided  by  said  rules  [of  the  Supreme  Court]  shall  be 
enforced.  Act  June  24,  1895,  §8,  P.  L.  212,  4  Purd.  4504. 

(1)  Superior  Court  Practice— Power  to  Make  Rules.  The  re- 
mainder of  this  section  also  provides  that  the  Superior  Court  shall  be 
governed  by  the  rules  of  the  Supreme  Court  so  far  as  applicable,  and 
gives  former  court  right  to  make  such  other  rules  as  it  may  deem 
necessary.  See  §19.  The  Supreme  Court  Equity  Rules  are  binding  on 
Superior  Court:  Swoope  v.  Wakefield,  10  Pa.  Super.  342, 1899;  Shamo- 
kin  Coal  Co.  v.  John,  18  Pa.  Super.  498,  1901 ;  Green  v.  Paint  Co.,  25 
Pa.  Super.  415,  1904;  McMellen  v.  Williamson,  32  Pa.  Super.  263, 
1906;  Groff  v.  Trust  Co.,  32  Pa.  Super.  416,  1907. 

§214. Certificate  of  Counsel — Notice  of  Transfer. 

To  this  list  all  causes  shall  be  transferred  in  which  the  at- 

307 


HEARING  OF  CASES. 


§§214-219]  Short  Cause  List — Criminal  Cases  [Chap.  14, 

torney  of  either  party  shall  certify  that  it  is  a  short  cause. 
Notice  of  such  transfer  shall  be  given  forthwith  by  the  pro- 
thonotary  to  the  other  party.  Supreme  Court  Rule  55. 

§215. Objection  by  Opposing  Counsel.   Where  a 

cause  has  been  certified  to  be  a  short  cause  by  the  attorney 
of  one  party,  and  the  attorney  of  the  other  party  shall  ob- 
ject in  writing,  it  shall  be  put  back  again  on  the  regular  list : 
Provided,  That  such  objection  shall  be  made  within  three 
days  from  notice,  and  before  the  short  list  is  taken  up  on 
Wednesday  morning.  Supreme  Court  Rule  57. 

§216. Time  for  Hearing.    The  causes  on  this  list 

shall  have  precedence  over  all  others  on  Wednesday  of  the 
week  in  which  the  same  causes  would  be  heard,  if  they  had 
remained  on  the  general  list  and  had  been  reached  in  their 
order.  Supreme  Court  Rule  56. 

§217. Time  Allowed  for  Argument.  On  the  hear- 
ing of  short  causes,  the  time  of  counsel  shall  be  limited  to 
fifteen  minutes  on  each  side.  Supreme  Court  Rule  58. 

§218.  —  Criminal  Cases — Supreme  Court — Murder  in 
First  Degree.  The  first  Monday  of  each  month  shall  be  a 
special  return-day  in  each  district  for  all  appeals  in  cases  of 
conviction  and  sentence  of  death  for  murder  of  the  first  de- 
gree. The  fifth  Monday  after  issuing  the  writ  shall  be  as- 
signed for  the  argument  thereof.  Supreme  Court  Rule  n. 

Capital  cases  shall  be  placed  at  the  head  of  the  list  for  ar- 
gument. Supreme  Court  Rule  12. 

§219. Superior  Court.    The  first  Monday  of  each 

month  shall  be  a  special  return-day  for  all  appeals  in  crimi- 

308 


HEARING  OF  CASES. 


§§206-227]  Criminal   Cases — Continuances  §§219-221 

nal  cases.  The  fifth  Monday  after  issuing  the  writ  shall  be 
assigned  for  the  argument  thereof;  provided,  the  court 
shall  then  be  in  session.  If  then  in  session  in  a  place  other 
than  that  in  which  the  writ  issued,  the  prothonotary  issuing 
such  writ  shall  certify  the  record  to  the  place  in  which  the 
court  shall  be  sitting.  If  the  court  shall  not  be  in  session  at 
that  time,  the  case  shall  be  certified  to  the  place  in  which 
the  next  term  shall  be  held.  Such  cases  shall  be  placed 
at  the  head  of  the  list  for  argument.  Superior  Court 
Rule  7. 

§220 — Continuance — Allowed  only  for  Cause — Supreme 
and  Superior  Courts.  No  cause  on  said  [weekly]  list  shall 
be  continued  when  reached,  except  by  leave  of  the  court 
upon  cause  shown.  Engagements  of  counsel  in  the  lower 
courts  will  not  be  recognized  as  a  reason  for  the  continu- 
ance or  postponement  of  a  cause,  except  when  they  are  ac- 
tually engaged  in  a  trial  which  has  been  commenced  in  a 
previous  week  and  is  unfinished.  Supreme  Court  Rule  51 ; 
Superior  Court  Rule  40. 

(1)  Continuance  for  Failure  to  Produce  Papers.  If  upon  examina- 
tion of  case  after  argument,  the  Supreme  Court  deem  production  of 
original  papers  called  for  by  counsel  at  beginning  of  argument  as 
essential  for  full  comprehension  of  case,  they  will  make  the  proper 
order  but  will  not  grant  continuance  for  failure  to  produce  at  time  of 
argument :  Henry  v.  Martin,  1  W.  N.  C.  277, 1873. 

(2)  Trial  in  Lower  Court  in  Absence  of  Counsel.    The  above  rule 
is  both  legal  and  reasonable,  and  it  is  the  duty  of  lower  court  to  have 
regard  for  it;  and  judgment  of  lower  court  will  be  reversed  if  trial 
was  had  in  absence  of  counsel  who  was  engaged  in  argument  of  case 
in  appellate  court :  Peterson  v.  R.  R.,  177  Pa.  335,  1896. 

§  221.  —  Passing  Case  on  List — Supreme  and  Superior 
Courts.  When  it  is  desired,  for  any  reason  whatever,  that 

309 


HEARING  OF  CASES. 


§§  221,  222  Passing  Case — Order  of  Argument  [Chap.  14, 

a  case  be  passed  at  its  regular  turn  on  the  list,  the  pro- 
thonotary  must  be  notified  before  the  case  is  put  on  the 
daily  list.  Engagement  of  counsel  in  other  courts,  or 
agreement  of  parties,  is  no  ground  of  exception  to  this 
requirement.  The  rule  is  for  the  conduct  of  the  court's 
business,  and  is  not  subject  to  variation  by  counsel  for  any 
cause.  Supreme  Court  Rule  52;  Superior  Court  Rule  41. 

§222. — Argument — Order  of  Hearing.  In  the  argument 
of  cases  counsel  for  the  appellant  shall  have  the  right  to 
begin  and  conclude,  but  in  concluding  shall  be  confined 
to  answering  the  arguments  of  appellee's  counsel.  In  the 
exceptional  cases  where  two  counsel  desire  to  be  heard  for 
the  appellee,  the  counsel  speaking  second  shall  confine  his 
argument  to  questions  not  discussed  by  his  associate.  Su- 
perior Court  Rule  43. 

(1)  What  Will  be  Heard  on  Appeal — Argument — Depositions, 
(a)  Only  the  party  appealing  is  entitled  to  file  exceptions  or  be 
heard  on  appeal:  Berryhill  v.  Dowding,  8  Watts  313,  1839;  Dyott's 
Est.,  2  W.  &  S.  557,1841;  Cash's  Ap.,  1  Pa.  166, 1845; Commonwealth's 
Ap.,  5  Pa.  267,  1847;  (b)  arguments  of  counsel  must  be  confined  to 
errors  assigned  on  record:  Berry  v.  Vantries,  12  S.  &  E.  89,  1824;  (c) 
additional  counsel  for  appellant  may  be  heard,  although  court  has 
not  cared  to  hear  counsel  for  appellee:  Good  v.  Good,  2  Mona.  665, 
1889;  see  contra,  Morrison  v.  Bachert,  2  Mona.  664,  1888;  (d)  profes- 
sional opinions  may  be  read,  not  as  authorities,  but  as  arguments  ad- 
dressed to  court:  Steiner  v.  Coxe,  4  Pa.  13,  1846;  (e)  parol  evidence 
is  not  admissible  on  hearing:  Buckmeyer  v.  Dubbs,  5  Binn.  29,  1812; 
Fisher  v.  Nyce,  60  Pa.  107,  1869;  (f)  nor  are  affidavits  admissible  on 
question  of  merits,  but  only  to  determine  regularity  of  appeal: 
Drenkle  v.  Garber,  7  Watts  122,  1838;  (g)  depositions  may  be  taken 
by  either  party  on  ten  days'  notice  to  adverse  party,  without  special 
order  of  court;  but  special  order  is  necessary  to  take  depositions  on 
shorter  notice:  Armstrong's  Est.,  6  Watts  236,  1837;  (h)  on  appeal 
from  decree  in  divorce,  depositions  taken  subsequent  to  appeal  can- 
not be  read:  Elmes  v.  Elmes,  9  Pa.  166,  1848;  (i)  question  of  produc- 

310 


HEARING  OF  CASES. 


§§  206-227]  Argument — Time — Re-Argument  §§  223-5 

tion  of  original  papers  lies  with  appellate  court:  Henry  v.  Martin, 
1  W.  N.  C.  277,  1873;  (j)  when  appellate  court  is  not  furnished  with 
copy  of  special  Act  of  Assembly,  it  will  presume  lower  court  properly 
construed  it :  Steiner  v.  Loan  Co.,  98  Pa.  591,  1881. 

(2)  Submitting  Cause  on  Paper-Books.  A  case  may  be  submitted 
on  paper-books  without  oral  argument. 

§223.  —  —  Time  Allowed.  The  argument  of  each 
cause  shall  be  limited  to  one  hour,  unless  the  Chief  Justice, 
upon  an  examination  of  the  paper-books,  shall  consider 
more  time  to  be  necessary.  Supreme  Court  Rule  50. 

(1)  Short  Causes.  Time  for  argument  of  short  causes  is  limited 
to  fifteen  minutes  on  each  side :  see  §217,  above. 

§224. Ex  Parte — Supreme  and  Superior  Courts. 

The  prothonotary  shall  endorse  on  each  appeal  or  writ  of 
certiorari  to  remove  proceedings  a  rule  to  appear  and  plead 
at  the  return-day  of  the  writ;  and  on  default  of  appearance 
when  the  cause  is  called  for  argument,  and  on  proof  of 
ten  days'  service  on  the  appellee  or  his  counsel  below,  the 
court  will  proceed  ex-parte.  Supreme  Court  Rule  16;  Su- 
perior Court  Rule  10. 

(1)  One  Counsel  Only.  Only  one  counsel  for  appellant  will  be 
heard  when  there  is  no  appearance  nor  argument  for  appellee:  Mor- 
rison v.  Bachert,  2  Mona.  664,  1888;  see  contra,  Good  v.  Good,  2 
Mona.  665,  1389. 

§225.  Re- Argument  —  Motion  —  Attaching  Copy  of 
Opinion.  Motions  for  re-argument  or  for  other  purpose, 
after  judgment,  order  or  decree,  shall  be  filed  in  the  office 
of  the  prothonotary  of  this  court  for  the  proper  district, 
but  the  record  shall  not  be  retained  in  any  appeal  beyond 
the  limit  of  ten  days  provided  by  the  Act  of  May  IQ,  1897, 
[see  §244]  unless  upon  an  order  from  the  court  or  one 
of  the  justices  thereof.  Such  motions  must  be  accompan- 


HEARING  OF  CASES. 


§§  225,  226  Ke-Argument — New  Trial,  Murder  Cases  [Chap.  14, 

ied  with  a  copy  of  the  opinion  of  the  court.  Supreme  Court 
Rule  18;  Superior  Court  Rule  12. 

(1)  When  Re-Argument  Will  be  Allowed — Practice,     (a)  A  re- 
argument  under  color  of  appeal  will  not  be  permitted  on  same  ques- 
tions raised  and  decided  on  former  appeal:   Cowen  v.  Plate  Glass 
Co.,  188  Pa.  542, 1898;  Smith  v.  Wildman,  194  Pa.  294, 1900;  Creachen 
v.  Carpet  Co.,  214  Pa.  15,  1906;  (b)  but  when  appeal  is  dismissed  on 
ground  that  appellant  had  no  standing  in  ease,  which  decree  was 
declared,  in  subsequent  suit,  to  be  binding  on  him,  court  will,  on 
appeal  from  latter  case,  order  reargument  of  former:  Gravenstein  v. 
Feger,  42  L.  I.  407,  1885;  (c)  where  landowner  alleged  certain  street 
had  been  vacated,  but  record  showed  no  such  fact,  re-argument  will 
not  be  allowed  but  he  will  be  allowed  to  apply  to  lower  court  to  open 
judgment  to  inquire  whether  street  was  legally  vacated:  Osterheldt 
v.  Phila.,  195  Pa.  362,  1900;   (d)   re-hearing  will  not  be  granted  on 
ground  of  after  discovered  evidence  which  merely  contradicts  other 
evidence,  but  if  investigation  seems  necessary,  record  will  be  remitted 
and  new  trial  granted:  Greason's  Case,  205  Pa.  630,  1903. 

(2)  Practice.     The  petition  for  re-argument  should  be  presented 
before  the  record  is  returned  to  the  lower  court:  (see  §244).    If  pos- 
sible, it  should  be  printed  and  then  handed  to  the  prothonotary  for 
presentation  to  the  court.    No  argument  will  be  heard  unless  ordered 
by  court,  and  paper-books  may  be  sent  to  the  prothonotary.     If  the 
petition  is  allowed,  the  court  will  fix  the  time  for  re-argument.    For 
form  of  petition,  see  Appendix,  §67. 

(3)  Rule  to  Take  Off  Non-Pros.    Appellate  court  judge  may,  dur- 
ing vacation  and  after  record  has  been  remitted,  grant  rule  to  show 
cause  why  judgment  of  non-pros  of  writ  of  error  should  not  be  taken 
off:  Lebanon  Ins.  Co.  v.  Erb,  1  Sad.  181, 1885;  see  §208,  note  (3). 

§226.  Rule  for  New  Trial  Nunc  Pro  Tune  in  Murder 
Cases — Petition.  Whenever  by  petition,  supported  by 
after-discovered  evidence,  it  shall  be  made  to  appear  to  the 
Supreme  Court  that  there  is  ground  for  substantial  doubt 
as  to  the  guilt  of  any  prisoner  convicted  of  murder  of  the 
first  degree,  the  said  court  shall  have  power  to  authorize 
the  court  of  oyer  and  terminer  in  which  such  prisoner  has 

312 


HEARING  OF  CASES. 


§§206-227]  Agreements  of  Attorneys  §§226,227 

been  convicted  to  grant  a  rule  for  new  trial  nunc  pro  tune, 
notwithstanding  the  expiration  of  term  in  which  such  pris- 
oner was  convicted  and  sentenced;  and  thereupon  the  said 
court  of  oyer  and  terminer  may,  in  its  discretion,  grant 
and  proceed  to  hear  such  rule,  as  in  other  cases.  Act  April 
22,  1903,  §  i,  P.  L.  245,  i  Purd.  1046,  pi.  69. 

(1)  Form  of  Petition.    Petition  may  be  considered  though  not  in 
precise  form  contemplated  by  this  Act:  Greason's  Petition,  205  Pa. 
630,  1903;  compare  Com.  v.  Hine,  213  Pa.  97,  1905.    See  Appendix, 
§69. 

(2)  Discharge  of  Rule — Appeal.    No  appeal  lies  from  order  of 
lower  court  discharging  such  rule :  Com.  v.  Greason,  208  Pa.  126,  1904. 

§227.  Agreements  and  Notices  of  Attorneys  to  be  in 
Writing.  All  agreements  and  notices  of  attorneys  touch- 
ing the  business  of  the  court  shall  be  in  writing,  otherwise 
the  court  will  not  enforce  them.  Supreme  Court  Rule  10; 
Superior  Court  Rule  6. 

(1)  What  Agreements  Are  Included.  The  above  rules  do  not  apply 
to  agreements  made  in  open  court  or  before  a  master  and  acted  upon 
by  the  parties :  Black  v.  Black,  206  Pa.  116,  1903. 


3^3 


REVIEW  ON  APPEAL. 


§228  Power  to  Modify  Judgment— New  Trial  [Chap.  15, 

CHAPTER  XV. 

REVIEW  ON  APPEAL. 

§228.    Judgment— Power  to  Affirm,  Reverse  or  Modify  Decree  Ap- 
pealed from  or  Grant  New  Trial. 

(A)  Supreme  Court. 

(B)  Superior  Court. 

(C)  Equity  Cases — Question  of  Remedy  at  Law. 
§229.    Review  on  Merits  in  Appeals  from  Orphans'  Court. 
§230.    Review  of  Law  and  Evidence  in  Capital  Cases. 
§231.    Merits  of  Case  not  to  be  Considered  in  Road  Cases. 

§228.  Judgment — Power  to  Affirm,  Reverse  or  Modify 
Decree  Appealed  from  or  Grant  New  Trial —  (A)  Supreme 
Court.  The  Supreme  Court  shall  have  power  in  all  cases 
to  affirm,'  reverse,  amend  or  modify  a  judgment,  order  or 
decree  appealed  from,  and  to  enter  such  judgment,  order  or 
decree  in  the  case  as  the  Supreme  Court  may  deem  proper 
and  just,  without  returning  the  record  for  amendment  or 
modification  to  the  court  below,  and  may  order  a  verdict 
and  judgment  to  be  set  aside  and  a  new  trial  had.  Act  of 
May  20,  1891,  §2,  P.  L.  101,  2.  Purd.  1439,  pi.  15. 

Whenever  a  case  is  appealed  to  the  Supreme  Court  from 
the  Superior  Court,  the  appeal  shall  be  taken  from  the 
judgment  of  the  Superior  Court  but  the  whole  proceedings 
shall  be  brought  thereby  within  the  jurisdiction  and  power 
of  the  Supreme  Court,  who  may  enter  therein  such  judg- 
ment, order  or  decree  as  may  be  just,  except  that  it  may  not 
increase  (although  it  may  reverse)  a  sentence  upon  an  in- 
dictment, and  who  may  thereupon  send  the  record  either  to 
the  Superior  Court  or  directly  to  the  court  below,  as  the 


REVIEW  ON  APPEAL. 


§§228-31]  Equity — Question  of  Remedy  at  Law  §228 

Supreme  Court  may  consider  advisable.  Act  June  24, 
1895,  §9,  P.  L.  212,  2  Purd.  4518,  pi.  37. 

(B)  Superior  Court.  The  Superior  Court  may  non 

pros  any  appeal  for  want  of  due  prosecution.  It  may  af- 
firm, reverse,  amend  or  modify  any  order,  judgment  or  de- 
cree, as  it  may  think  to  be  just,  or  it  may  return  the  record 
for  further  proceedings  to  the  court  below.  But  it  may  not 
increase  (although  it  may  reverse)  any  sentence  upon  any 
indictment.  Act  of  June  24,  1895,  §8,  P.  L.  212,  4  Purd. 
4504,  pi.  37. 

(C)  Equity  Cases  — Question  of  Remedy  at  Law. 

If  a  demurrer  or  answer  be  filed,  averring  that  the  suit 
should  have  been  brought  at  law,  that  issue  shall  be  decid- 
ed in  limine,  before  a  hearing  of  the  cause  upon  the  merits. 
If  the  court  shall  decide  that  a  court  of  equity  has  jurisdic- 
tion, the  plaintiff  shall  not  thereafter  be  permitted  to  ques- 
tion the  decision  upon  that  ground,  nor  shall  a  decree  in 
defendant's  favor  be  reversed  or  set  aside  because  the  suit 
should  have  been  brought  at  law.  Act  June  7,  1907,  §2, 
P.  L.  440,  5  Purd.  5466,  pi.  4. 

If  upon  an  appeal,  after  a  decision  upon  the  merits,  the 
question  whether  the  suit  should  have  been  brought  at  law 
is  not  specifically  raised  by  the  defendant's  assignments  of 
error,  the  question  shall  be  deemed  to  have  been  waived, 
and  the  decree  below  shall  not  be  reversed  or  set  aside 
because  the  suit  should  have  been  brought  at  law.  If  it  is 
so  raised,  and  the  decision  of  the  appellate  court  is  that  the 
suit  should  have  been  brought  at  law,  it  shall  remit  the 
cause  to  the  court  below,  with  directions  to  transfer  it  to 
the  law  side  of  that  court,  all  the  costs  in  the  cause  to  abide 
the  final  determination  thereof  in  the  court  of  law.  The 
plaintiff  shall  not  be  permitted  to  raise  the  question  upon 
his  appeal  after  a  decision  upon  the  merits,  nor  shall  the 

315 


REVIEW  ON  APPEAL. 


§228  (1)  (a)-(d)  Affirmance  of  Judgment  [Chap.  15, 

decree  below  be  reversed  or  set  aside  upon  his  appeal,  be- 
cause the  suit  should  have  been  brought  at  law.  Act  June 
7,  1907,  §3>  P-  L.  440,  5  Purd.  5466,  pi.  5. 

(1)  Affirmance  of  Judgment,  (a)  Judgment  will  be  affirmed 
where  there  is  no  error  apparent  on  record:  Long  v.  Maguire,  22  Pa. 
163,  1853;  McCaskey  v.  Graff,  23  Pa.  321,  1854;  Neil  v.  Tate,  27  Pa. 
208,  1856;  Walls  v.  Wilson,  28  Pa.  514,  1857;  Cathcart  v.  Com.,  37 
Pa.  108,  1860;  Wagner's  Ap.,  43  Pa.  102,  1862;  Del.  Div.  Canal  v. 
Com.,  60  Pa.  367,  1869;  Byrne  v.  Grossman,  65  Pa.  310,  1870;  Hep- 
burn's Ap.,  65  Pa.  468,  1870;  Thirty-fourth  St.  Case,  81  Pa.  27,  1876; 
Wilcox  v.  Payne,  88  Pa,  154,  1878;  Jefferson  Twp.  Road,  3  Pa.  Super. 
467,  1897;  Ross  Twp.  Road,  5  Pa.  Super.  85,  1897;  Com.  v.  Duff,  7  Pa. 
Super.  415,  1898;  Dennison  Twp.  Road,  13  Pa.  Super.  227,  1900;  Com. 
v.  Price,  15  Pa.  Super.  342,  1900;  Stephens  v.  Addis,  19  Pa.  Super. 
185,  1902;  Brooke's  Est.,  24  Pa.  Super.  430,  1904;  see  also  §187,  note 
(1)  (a) ;  (b)  or  where  record  is  incomplete  or  not  before  court,  pre- 
sumption in  such  case  being  in  favor  of  regularity  of  record:  Walk- 
er's Ap.,  2  Dall.  190,  1792;  McFarland  v.  Township,  12  S.  &  R.  297, 
1825;  Munderbach  v.  Lutz,  14  S.  &  R.  220,  1826;  Fitsimmons  v. 
Leckey,  3  P.  &  W.  Ill,  1831;  Gram's  Ap.,  4  Watts  43,  1835;  Girts  v. 
Com.,  22  Pa.  351,  1853;  Bull's  Ap.,  24  Pa.  286,  1855;  Bryan  v.  Com., 
27  Pa.  284,  1856;  Weaver  v.  Com.,  29  Pa.  445,  1857;  Eldred  v.  Hazlet, 

38  Pa.  16,  1861;  Rogers  v.  Whiteley,  38  Pa.  137,  1861;  Delaware  Div. 
Canal  v.  Com.,  60  Pa.  367,  1869;  Rosenberry's  Ap.,  31  L.  I.  101,  1874; 
Vensel  v.  Coiner,  31  L.  I.  373,  1874;  Riser  v.  Vanleer,  2  W.  N.  C.  561, 
1876;  Moreland  v.  Benton  Twp.,  3  W.  N.  C.  20,  1876;  Wilcox  v. 
Payne,  88  Pa.  154,  1878;  Robb's  Ap.,  1  Penny.  436,  1881;  Wise  v. 
Allen,  9  Sad.  561, 1888;  Morrison  v.  Nevin,  130  Pa.  344,  1889;  Walter 
v.  Sun  Fire  Office,  165  Pa.  381,  1894;  Pittsburg  v.  Maxwell,  179  Pa. 
553,  1897;  Miller  v.  Lash,  4  Pa.  Super.  292,  1897;  Kimelewski  v.  Com., 

39  Pa.  Super.  308,  1909;  see  also  note  (17)  below;  (c)  and  appellant 
must  not  only  show  there  has  been  an  error,  but  that  he  has  been  in- 
jured  thereby:    Chase   v.   Hubbard,   99   Pa.   226,   1881;    Murphy   v. 
Chase,  103  Pa.  260,  1883;  Ziegler  v.  Handrick,  106  Pa.  87,  1884; 
Roesler  v.  Phelps,  42  L.  I.  457,  1885;  Lerch  v.  Snyder,  112  Pa.  161, 
1886;  Kiehl  v.  Com.,  18  W.  N.  C.  505,  1887;  Kennedy  v.  Oil  Co.,  199 
Pa.  644,  1901;  Com.  v.  Stanley,  39  Pa.  Super.  402,  1909;  (d)  judgment 
will  be  affirmed  where  neither  party  has  any  standing  in  appellate 
court:  Eby  v.  Guest,  94  Pa.  160,  1880;  (e)  or  where  errors  assigned 

316 


REVIEW  ON  APPEAL. 


§§228-31]  Affirmance  and  Reversal  §  228  (1)  (e)-(2)  (f ) 

are  not  sustained  by  majority  of  appellate  court:  Shollenberger  v. 
Brinton,  52  Pa.  9,  1866;  (f)  judgment  entered  on  request  of  parties 
will  not  be  disturbed  for  mere  technical  reasons:  Myer  v.  Myer,  187 
Pa.  247,  1898;  (g)  where  judgment  is  opened  and  trial  results  in 
verdict  for  defendant,  appellate  court,  in  affirming  judgment  on 
verdict,  will  also  affirm  judgment  on  appeal  from  order  opening  judg- 
ment: Brecht  v.  McParland,  187  Pa.  634,  1898;  (h)  on  appeal  from 
interlocutory  order,  where  result  will  be  same  to  parties,  court  may 
affirm  order  of  lower  court  instead  of  dismissing  appeal:  Philadel- 
phia v.  Wellens,  19  Pa.  Super.  379,  1902;  (i)  in  affirming  judgment  in 
ejectment  against  railroad  for  portion  of  its  road,  the  court  will  stay 
proceedings  until  the  damages  are  assessed  for  taking  the  land: 
Pittsburg  R.  R.  v.  Jones,  59  Pa.  433,  1868;  (j)  judgment  may  be  af- 
firmed as  to  one  or  more  defendants  and  reversed  as  to  others: 
Jameison  v.  Pomeroy,  9  Pa.  230,  1848;  McCanna  v.  Johnston,  19  Pa. 
434,  1852;  Sopp  v.  Winpenny,  68  Pa.  78,  1871;  Walker  v.  Tupper,  152 
Pa.  1,  1892;  (k)  appeal  will  be  dismissed  where  controversy  has  been 
ended  by  happening  of  some  extraneous  event,  there  being  in  such 
case  no  question  as  to  which  court  can  grant  relief:  Reichard's  Li- 
cense, 45  Pa.  Super.  606,  1911;  Corn  v.  Cairns,  46  Pa.  Super.  96, 
1911.  See  note  (2)  (f),  this  section. 

(2)  Reversal  of  Judgment  (a)  Appellate  court  will  reverse  for 
irregularities  in  conduct  of  trial  appearing  on  face  of  record:  see 
cases,  note  (1)  (a),  this  section;  (b)  but  only  for  clear  cases  of  erroi 
appearing  on  record,  presumption  being  in  favor  of  regularity:  see 
cases,  note  (1)  (b),  this  section,  and  note  (17),  below;  (c)  where 
record  of  bill  in  equity,  dismissed  by  lower  court  for  want  of  juris- 
diction, is  so  meagre  that  court  cannot  determine  whether  or  not 
there  was  adequate  remedy  at  law,  decree  will  be  reversed  and  record 
remitted  for  further  proceedings:  Gray  v.  Gas  Co.,  206  Pa.  303, 
1903;  (d)  affirmance  of  preliminary  injunction  by  appellate  court 
does  not  prevent  it  from  reversing  it  on  appeal  from  final  decree: 
Paxson's  Ap.,  106  Pa.  429,  1884;  (e)  order  refusing  judgment  for 
want  of  sufficient  affidavit  of  defense  will  be  reversed  only  in  clear 
cases :  see  §50,  note  (4) ;  (f )  where  it  appears  no  cause  of  action  ex- 
isted at  time  suit  was  brought,  appellate  court  will  reverse:  Mil- 
ler v.  Ralston,  1  S.  &  R.  309,  1815;  Moyer  v.  Kirby,  14 
S.  &  R.  162,  1826;  Clay  v.  Irvine,  4  W.  &  S.  232,  1842;  see 
note  (1)  (k),  this  section;  (g)  where  the  verdict  exceeds  the  dam- 

317 


REVIEW  ON  APPEAL. 


§228  (2)  (g)-(3)  (g)  Reversal— Entry  of  Judgment  [Chap.  15, 

ages  paid,  court  will  reverse  unless  plaintiff  remits  excess:  Lantz  v. 
Frey,  19  Pa.  366,  1852;  (h)  judgment  will  not  be  reversed  merely  be- 
cause lower  court  gave  wrong  reasons  for  it:  Piper's  Ap.,  20  Pa.  67, 
1852;  Thomas  v.  Mann,  28  Pa.  520,  1857;  McCracken  v.  Clark,  31  Pa. 
498,  1858;  Rupp  v.  Orr,  31  Pa.  517,  1858;  Susquehanna  Ins.  Co.  v. 
Gackenbach,  115  Pa.  492,  1886;  Powell's  Est.,  138  Pa.  322,  1891;  Com. 
v.  Shirley,  152  Pa.  170,  1893;  Wenger's  Est.,  2  Pa.  Super.  611,  1896; 
Jeannette  Mills  v.  Greenwalt,  11  Pa.  Super.  157,  1899;  Brew  v.  Hast- 
ing, 206  Pa.  155,  1903;  Carpenter  v.  Lancaster,  212  Pa.  581,  1905; 
Clegg  v.  Steel  Co.,  34  Pa.  Super.  63,  1907;  see  also  note  (20)  (u),  this 
section;  (i)  judgment  may  be  reversed  as  to  one  or  more 
defendants  and  affirmed  as  to  others:  Jamieson  v.  Pomeroy,  9 
Pa.  230,  1848;  McCanna  v.  Johnston,  19  Pa.  434,  1852;  Sopp  v.  Win- 
penny,  68  Pa.  78,  1871;  Walker  v.  Tupper,  152  Pa.  1,  1892;  (j)  re- 
versal without  new  venire  is  not  of  itself  a  bar  to  second  action  for 
same  cause:  see  cases,  note  (8)  (g),  this  section. 

(3)  Entry  of  Judgment  on  Reversal,  (a)  On  reversing  judgment, 
court  may  give  correct  judgment  according  to  findings  of  jury:  Easton 
v.  Worthington,  5  S.  &  R.  130,  1819;  Stewart  v.  Martin,  2  Watts  200, 
1834;  Flanigan  v.  Wetherill,  5  Whar.  280,  1839;  Haas  v.  Evans,  5  W. 
&  S.  252,  1841;  Carman  v.  Noble,  9  Pa.  366,  1848;  McMicken  v.  Com., 
58  Pa.  213,  1868;  Savage  v.  Everman,  70  Pa.  315,  1872;  (b)  where 
judgment  has  been  improperly  arrested  by  court  below,  appellate 
court,  on  reversing,  will  enter  judgment  on  verdict:  Wilson  v.  Gray, 
8  Watts  25,  1838;  (c)  judgment  will  also  be  entered  on  verdict  where 
judgment  n.  o.  v.  is  reversed:  Chandler  v.  Ins.  Co.,  88  Pa.  223,  1878; 
Henry  v.  Heilman,  114  Pa.  499,  1886;  (d)  but  where  no  motion  was 
made  below  for  judgment  n.  o.  v.  for  defendant,  appellate  court  can 
only  reverse  with  new  venire :  Light  v.  Miller,  38  Pa.  Super.  408,  1909 ; 
(e)  and  when  it  is  too  late  for  other  party  to  appeal  on  exceptions 
taken  below  if  judgment  were  entered,  appellate  court  will  remit 
record  with  directions  to  enter  judgment  in  accordance  with  its  opin- 
ion: Hughes  v.  Miller,  192  Pa.  365,  1899;  Hawn  v.  Stoler,  22  Pa. 
Super.  307,  1903;  McGeehan  v.  Hughes,  217  Pa.  121,  1907;  Hardon- 
court  v.  Iron  Co.,  225  Pa.  379,  1909 ;  "^T)  proper  judgment  will  be  en- 
tered on  special  verdict:  Com.  v.  Haffey,  6  Pa.  348,  1847;  (g)  where 
judgment  on  demurrer  to  bill  in  equity  is  reversed  and  case  rests  en- 
tirely on  record,  final  judgment  will  be  entered:  Fort  Pitt  B.  &  L. 
Asso.  v.  Association,  159  Pa.  308,  1894;  (h)  when  in  action  of  tort, 

318 


REVIEW  ON  APPEAL. 


§§228-31]  Modification  of  Judgment        §  228  (3)  (h)-(4)  (e) 

judgment  n.  o.  v.  was  entered  for  plaintiff  but  no  amount  is  stated, 
appellate  court,  in  reversing  judgment,  will  direct  judgment  to  be  en- 
tered on  verdict  for  defendant  without  prejudice  to  right  of  plaintiff 
to  appeal  from  such  judgment :  Casey  v.  Canning,  39  Pa.  Super.  1909  j 
(i)  when  appellate  court  reverses  decree  of  lower  court  on  application 
for  liquor  license,  the  form  of  the  order  to  be  made  in  the  case  is 
within  the  discretion  of  appellate  court :  Indian  Brew.  Co.  's  License, 
226  Pa.  56,  1909;  (j)  where  bond  is  given  to  dissolve  foreign  attach- 
ment and  defendant  is  subsequently  discharged  in  bankruptcy,  ap- 
pellate court,  on  reversing  judgment  for  defendant,  will  direct  entry 
of  special  judgment  against  defendant  for  purpose  of  fixing  liability 
of  surety,  and  direct  perpetual  stay  of  execution:  United  States  En- 
gine Co.  v.  Iron  Co.,  227  Pa.  262,  1910;  (k)  on  reversing  decree  in 
equity  declaring  sons  to  be  entitled  to  profits  in  their  father's  busi- 
ness, court  will  direct  that  it  be  without  prejudice  to  their  right  to 
assert  any  claim  for  services  they  might  have:  Albright  v.  Albright, 
228,  Pa.  562,  1910.  For  other  cases  relating  to  further  proceedings 
after  record  is  remitted,  see  note  (6),  below. 

(4)  Modification  of  Judgment — Extent  of  Power,  (a)  The  Act  of 
1891  does  not  violate  Art.  1,  §6,  1  Purd.  118,  pi.  7,  of  the  Constitution, 
relating  to  right  of  trial  by  jury :  Smith  v.  Times  Pub.  Co.,  178  Pa.  481, 
1896;  Nugent  v.  Trac.  Co.,  183  Pa.  142,  1897;  Reno  v.  Shallenberger,  8 
Pa.  Super.  436,  1898;  (b)  but  it  would  seem  that  in  order  not  to  en- 
trench on  constitutional  right,  reduction  of  amount  of  judgment  enter- 
ed on  verdict  should  be  limited  to  striking  out  improper  items  as  in 
Terry  v.  Wenderoth,  147  Pa.  519,  1892;  (c)  or  to  cases  where  there  is 
some  mathematical  basis  for  computing  amount  of  reduction  as  in 
Glenn  v.  Davis,  2  Grant  153,  1858;  Cox  v.  Burdett,  23  Pa.  Super.  346, 
1903;  see  also  cases  under  (i),  this  note;  (d)  and  that  the  language 
of  the  court  in  Connellsville  v.  Hogg,  156  Pa.  326,  1893,  in  reference 
to  reducing  amount  of  judgment,  should  be  considered  in  view  of  the 
particular  facts  of  that  case  and  should  not  be  extended  to  cases 
where  the  amount  of  the  verdict  is  based  on  a  claim  for  unliquidated 
damages;  (e)  it  seems  the  court  will  leave  the  question  of  excessive 
verdict  to  be  first  disposed  of  below  on  motion  for  new  trial :  Charles 
v.  Bishoff,  1  Sad.  260,  1885;  Smith  v.  Times  Pub.  Co.,  178  Pa.  481, 
1896;  Stevenson  v.  Coal  Co.,  201  Pa.  112,  1902;  Robeson  v.  Pels,  202 
Pa.  399,  1902;  Reed  v.  R.  R.,  210  Pa.  211,  1904;  see  cases  under  note 
(9),  this  section,  as  to  review  of  discretion  of  lower  «ourt  in  granting 

319 


REVIEW  ON  APPEAL. 


§228  (4)  (f)-(r)  Modification  of  Judgment  [Chap.  15, 

or  refusing  new  trial  on  ground  of  excessive  verdict;  (f)  court  may, 
with  consent  of  parties  in  whose  favor  judgment  has  been  entered, 
enter  judgment  for  amount  it  deems  just  without  setting  aside  ver- 
dict :  Furry  v.  Stone,  1  Yeates  186,  1792 ;  Darrah  v.  Warnoch,  1  P.  & 
W.   21,   1829;    Thomas   v.   Northern   Liberties,   13    Penna.    St.    117, 
1850;    Graham    v.    Keys,    29    Pa.    189,    1858;    Glenn    v.    Davis,    2 
Grant  153,  1858;  Richards  v.  Gas  Co.,  130  Pa.  37,  1889;  Emerson  v. 
Shoonmaker,  135  Pa.  437,  1890 ;  Bang  v.  McKinstry,  32  Pa.  Super.  34, 
1907;   Ludwig  Piano  Co.  v.  Browne,  33  Pa.   Super.  81,  1907;    (g) 
especially   where   difference   between   amount   of   verdict   and   what 
would  have  been  a  proper  verdict  is  susceptible  of  mathematical  cal- 
culation: Glenn  v.  Davis,  2  Grant  153,  1858;  Cox  v.  Burdett,  23  Pa. 
Super.    346,    1903;    Osterling    v.    Carpenter,    230    Pa.    153,    1911; 
(h)  the  appellate  court  may  amend  or  modify  the  judgment  without 
returning  record:   Daniels  v.   Com.,  7  Penna.   St.  371,   1847;   Mills 
v.  Com.,  13  Pa.  630,  1850;  Terry  v.  Wenderoth,  147  Pa.  519,  1892; 
Com.  v.  Phila.,  157  Pa.  531,  1893;  (i)  it  may  correct  mistake  in  en- 
tering amount  of  judgment :  Isett  v.  Caldwell,  101  Pa.  32,  1882 ;  Lyons 
v.  Means,  1  Pa.  Super.  608,  1896;  Joseph  v.  Richardson,  2  Pa.  Super. 
208, 1896;  Com.  v.  Yeisley,  6  Pa.  Super.  273,  1898;  Reger  v.  Brass  Co., 
6  Pa.  Super.  375,  1898;  Simpson  v.  Meyers,  197  Pa.  522,  1900;   (j) 
or  mistake  in  pracipe  in  ejectment  by  which  more  land  than  plaintiff 
claimed  was  included:  Brothers  v.  Mitchell,  157  Pa.  484,  1893;  Simp- 
son v.  Myers,  197  Pa.  522, 1896 ;  (k)  or  where  wrong  person  was  made 
plaintiff:  Thornton  v.  Britton,  144  Pa.  126,  1891;  (1)  it  may  modify 
injunction  restraining  breach  of  contract  so  as  to  correspond  with 
provision  of  contract:  Martinsburg  Bank  v.  Penna.  Co.,  150  Pa.  36, 
1892;  (m)  modify  entry  of  judgment  generally  so  as  to  make  costs 
payable  out  of  specific  fund :  Rodgers  v.  Black,  15  Pa.  Super.  498,  1902 ; 
(n)  amend  judgment  so  as  to  express  evident  intent  of  court  and  jury 
below:  Thrall  v.  Wilson,  17  Pa.  Super.  376,  1901;  (o)  correct  judg- 
ment on  special  verdict:  Com.  v.  Haffey,  6  Pa.  348,  1847;   (p)  judg- 
ment may  be  reversed  as  to  one  or  more  defendants  and  affirmed  as  to 
others:  Jamieson  v.  Pomeroy,  9  Pa.  230,  1848;  McCanna  v.  Johnston, 
19  Pa.  434,  1852;  Sopp  v.  Winpenny,  68  Pa.  78,  1871;  Walker  v.  Tup- 
per,  152  Pa.  1,  1892;  (q)  unless  error  complained  of  pervades  whole 
judgment:  Swearingen  v.  Pendleton,  4  S.  &  R.  389, 1818;  (r)  and  court 
may  amend  by  striking  out  parties  improperly  joined:  Robinson  v. 
Buck,  71  Pa.  386,  1872;  see  also  (k),  this  note;   (s)  or  parties  not 

320 


REVIEW  ON  APPEAL. 


§§228-31]  Remitting  for  Further  Proceedings       §228  (4)  (s)-(6)  (e) 

served:  Jameison  v.  Pomeroy,  9  Pa.  230,  1848;  (t)  where  lower  court 
erroneously  arrests  judgment  in  favor  of  plaintiff  and  both  parties 
had  excepted  to  charge,  appellate  court  may  modify  proceedings  of 
lower  court  so  that  defendant  may  have  benefit  of  his  exceptions: 
Tryon  v.  Carlin,  5  Watts  371,  1836;  (u)  and  in  ejectment  it  may 
affirm  judgment  and  quash  assessment  of  value  of  improvements  as 
forming  no  part  of  verdict :  Miller  v.  Keene,  5  Watts  348,  1836 ;  (v) 
but  where  there  is  no  way  of  amending  record,  reversal  is  necessary: 
McClain  v.  County,  14  Pa.  Super.  273,  1900;  Whitehill  v.  Schwartz, 
27  Pa.  Super.  526,  1904;  (w)  if  plaintiff  is  entitled  to  whole  demand 
but  judgment  is  for  part  only,  it  will  stand,  with  leave  to  go  for  bal- 
ance: New  Castle  v.  El.  Co.,  2  Pa.  Super.  228,  1896;  (x)  new  trial 
awarded  unless  part  of  verdict  remitted:  note  (9)  (h),  this  section. 
For  statute  for  amendment  of  record,  see  §232. 

7-  (5)  Modification  of  Judgment  of  Appellate  Court,  (a)  Appellate 
court  may  amend  its  own  judgment :  McCoy  v.  Porter,  17  S.  &  R.  59 
1827;  Harper  v.  Keely,  17  Pa.  234,  1851;  Dillman's  Ap.,  2  Mona.  733, 
1890;  Nugent  v.  Traction  Co.,  183  Pa.  142,  1897;  Hughes  v.  Miller, 
192  Pa.  365,  1899;  Ellis  v.  Ins.  Co.,  9  Pa.  Super.  392,  1899;  (b)  even 
after  record  has  been  remitted:  Mathews  v.  Scranton,  1  Lack.  L.  R. 
474,  1879;*^(c)  but  not  where  proceedings  to  correct  decree  were  be- 
gun and  prosecuted  to  final  judgment  in  lower  court :  Brady  v. 
Shisler,  1  W.  N.  C.  97,  1874;  (d)  lower  court  cannot  modify  de- 
cree, after  affirmance  by  appellate  court,  on  ground  of  after-discov- 
ered evidence :  Steinmeyer  v.  Seibert,  47  Pitts.  L.  J.  117, 1890. 

(6)  Remitting  Cause  for  Further  Proceedings,  (a)  Where  appel- 
late court  reverses  judgment,  it  will  usually  enter  such  judgment  as 
lower  court  should  have  entered  (see  note  (3)  ) ;  but  where  injustice 
might  be  done  by  such  course,  it  will  remit  record  for  further  proceed- 
ings: Savage  v.  Everman,  70  Pa.  315,  1872;  (b)  record  will  be  remit- 
ted for  further  proceedings  where  it  appears  appellant  was  deprived 
of  his  rights  in  court  below  by  a  trick  of  his  opponent:  Lindemuth's 
Est.,  5  Watts  145,  1836;  (c)  where  auditor  fails  to  return  document- 
ary evidence  which  forms  basis  of  his  report,  case  will  be  remanded 
for  purpose  of  supplying  such  evidence:  Wagon  Works'  Est.,  198  Pa. 
250,  1901;  (d)  so  also  case  will  be  remanded  where  referee  fails  to 
make  a  finding  of  material  fact:  Dick  v.  Huidekoper,  218  Pa.  380, 
1907;  (e)  but  it  will  not  be  remitted  for  purpose  of  allowing  master 
in  divorce  to  consider  after-discovered  evidence  which  is  merely  cumu- 

321 

21 


REVIEW  ON  APPEAL. 


§  228  (6)  (e)-(o)      Remitting  for  Further  Proceedings  [Chap.  15, 

lative  and  had  previously  been  disregarded :  Hartje  v.  Hartje,  35  Pa. 
Super.  14,  1907;  (f)  and  where  court  sustains  petition  to  open  judg- 
ment or  enters  judgment  for  insufficient  affidavit  of  defense,  without 
giving  reasons  therefor,  record  will  be  remitted  to  secure  reasons: 
Hanhauser  v.  R.  R.,  222  Pa.  240,  1908;  Norris  v.  Breakwater  Co.,  231 
Pa.  163,  1911  ;V(g)  where  it  is  too  late  for  the  defendant  to 
appeal  if  the  judgment  were  entered  on  verdict,  appellate  court 
will  reverse  and  remit  record  with  directions  to  enter  judg- 
ment in  accordance  with  opinion:  Hughes  v.  Miller,  192  Pa. 
365,  1899;  Hawn  v.  Stoler,  22  Pa.  Super.  307,  1903:  MeGeehan  v. 
Hughes,  217  Pa.  121,  1907;  (h)  where  judgment  n.  o.  v.  is  reversed, 
court  may  remit  to  lower  court  with  directions  to  enter  such  judg- 
ment as  law  and  justice  may  require,  in  which  case  lower  court  may 
grant  new  trial:  Hughes  v.  Miller,  192  Pa.  365,  1899;  (i)  but  where 
case  is  remitted  for  proceeding  in  accordance  with  opinion  stated  in 
record,  lower  court  cannot  exceed  such  instructions:  Nippes's  Ap.,  35 
L.  I.  245,  1878;  Brown's  Est.,  213  Pa.  604,  1906;  (j)  where  judgment 
is  entered  on  issue  of  ' 'former  recovery"  and  general  issue  is  also 
pleaded  but  not  disposed  of,  reversal  by  Supreme  Court  without  pro- 
cedendo  does  not  allow  issuing  of  execution  without  first  trying  issue 
of  fact :  Schriver  v.  Eckenrode,  94  Pa.  456,  1880  ;^k)  where  record  of 
bill  in  equity,  dismissed  by  the  lower  court  for  want  of  jur- 
isdiction, is  so  meagre  that  court  cannot  determine  whether  or 
not  there  was  adequate  remedy  at  law,  decree  will  be  reversed  and 
record  remitted  for  further  proceedings:  Gray  v.  Gas  Co.,  206  Pa.  303, 
1903 ;  (1)  where  reversal  was  on  ground  that  evidence  was  sufficient  to 
carry  case  to  jury,  lower  court  cannot  enter  binding  instructions  on 
second  trial  where  evidence  is  substantially  same  as  on  first  trial: 
American  Steamship  Co.  v.  Landreth,  108  Pa.  264,  1884;  Collins  v. 
Busch,  15  Pa.  Super.  255,  1900 ;  (m)  where  Supreme  Court  reverses  de- 
cision refusing  judgment  for  want  of  sufficient  affidavit  of  defense, 
lower  court  cannot  strike  claim  from  record  on  ground  that  it  is  insuf- 
ficient :  Titusville  Iron  Works  v.  Oil  Co.,  130  Pa.  211,  1889 ;  (n)  when 
appellate  court  affirms  order  discharging  such  rule,  lower  court  may 
permit  a  supplemental  affidavit  to  be  filed :  Kyler  v.  Christman,  25  Pa. 
Super.  74, 1904;  see  also,  notes  to  §50;  (o)  remitting  record  with  direc- 
tions to  make  distribution  in  accordance  with  opinion  given  does  not 
contemplate  taking  new  testimony  or  rehearing  of  case:  Roberts 's  Est., 
163  Pa.  408,  1894;  (p)  after  affirmance  and  remittance  of  decree,  it  is 

322 


REVIEW  ON  APPEAL. 


§§228-31]  Procedendo  §  228  (6)  (p)-(8)  (a) 

too  late  to  allege  irregularities  committed  prior  to  decision  by  appel- 
late court:  Church's  Ap.,  103  Pa.  263,  1883;  (q)  but  though  decree 
of  lower  court  has  been  affirmed,  lower  court  may  correct  error  in  dis- 
tribution so  long  as  rights  of  third  parties  have  not  intervened:  God- 
shalk's  Est.,  20  Montg.  118,  1904;  (r)  and  where  on  reversal  of  appeal 
from  refusal  of  injunction  it  was  objected  that  no  injunction  bond 
had  been  filed,  such  bond  may  be  filed  at  any  time  before  injunction 
issues:  Penna.  R.  R.  v.  Boro.,  207  Pa.  180,  1903;  (s)  court  may  re- 
verse erroneous  sentence  and  send  case  back  for  proper  sentence  with- 
out affecting  trial:  Com.  v.  Barge,  11  Pa.  Super.  164,  1899;  (t)  where 
appellate  court  declares  all  proceedings  in  case  void,  lower  court 
should  strike  them  from  its  records:  Mutual  Ins.  Co.  v.  Tenan,  204 
Pa.  332,  1903;  see  also  next  note. 

(7)  Procedendo.     (a)    Where  there  are  matters  relating  to  the 
case  undisposed  of  in  lower  court,  a  procedendo  will  be  awarded  on 
reversal  by  Supreme  Court :  Harper  v.  Keely,  17  Pa.  234,  1851 ;  Leach 
v.  Ansbacher,  28  L.  I.  277,  1871;  Titusville  Iron  Works  v.  Oil  Co., 
130  Pa.  211,  1889;  Benzinger  Twp.  Road,  135  Pa.  176,  1890;  Leonard 
v.  Smith,  4  Dist.  249,  1895;  (b)  it  will  also  be  awarded  in  equity  case 
where   appellate   court    cannot    determine   whether   or   not   plaintiff 
had  adequate  remedy  at  law:  Gray  v.  Gas  Co.,  206  Pa.  303,  1903;  (c) 
and  where  appellate  court  cannot  consider  case  on  merits  because  of 
irregularities  on  trial:  Horn  Mfg.  Co.  v.  Steelman,  24  Pa.  Super.  126, 
1903 ;  (d)  or  where  judgment  n.  o.  v.  is  reversed :  Harper  v.  Keely,  17 
Pa.  234, 1851 ;  Leach  v.  Ansbacher,  28  L.  I.  277, 1871 ;  Dalmas  v.  Kem- 
ble,   215   Pa.  410,   1906;    (e)    where   appellate   court   reverses   order 
confirming  public  road  without  setting  aside  proceedings  but  omits 
to  award  procedendo,  lower  court  may  proceed  with  case  on  return  of 
record,  notwithstanding  the  omission:  Benzinger  Twp.  Road,  135  Pa. 
176,  1890;   (f)  where  Supreme  Court  reverses  decree  dismissing  bill 
for  injunction  and  reinstates  case,  effect  of  such  decree  is  to  restore 
case  to  same  position  it  occupied  before  bill  was  dismissed  and  lower 
court  may  proceed  to  take  testimony  and  again  dismiss  bill:  Hannum 
v.  Ry.,  221  Pa.  454,  1908;  (g)  dismissing  bill  in  equity  for  want  of 
jurisdiction   does  not   prejudice  right   to  proceed  in   proper  court: 
Brotzman's  Ap.,  119  Pa.  645,  1888. 

(8)  Venire  Facias  de  Novo.     (a)   A  new  venire  will  usually  be 
granted  on  reversal  for  error  committed  on  trial  of  cause:  Sterrett  v. 
Bull,  1  Binn.  238,  1808;  Reed  v.  Collins,  5  S.  &  R.  351,  1819;  Little 

323 


REVIEW  ON  APPEAL. 


§228  (8)  (a)-(q)  Venire  Facias  de  Xovo  [Chap.  15, 

Schuylkill  R.  R.  v.  Norton,  24  Pa.  465,  1855;  Penna.  R.  R.  v.  Fries,  7 
W.  N.  C.  433,  1879 ;  Fries  v.  R.  R.,  98  Pa.  142,  1881;  (b)  especially 
when  appellate  court  cannot  determine  from  record  who  is  entitled 
to  judgment:  Buck  v.  McKeesport,  223  Pa.  211,  1909;  (c)  unless 
declaration  does  not  set  forth  good  cause  of  action:  Ebersoll  v.  Krug, 
5  Binn.  51, 1812;  Griffith  v.  Eshelman,  4  Watts  51,  1835;  (d)  or  unless 
opinion  of  appellate  court  on  same  facts  in  another  proceeding 
would  prevent  a  contrary  result  on  new  trial:  Tozer  v.  Jackson,  164 
Pa.  373,  1894;  (e)  or  where  it  is  apparent  that  facts  proved  do  not 
authorize  recovery:  Penna.  R.  R.  v.  Fries,  7  W.  N.  C.  433,  1879;  (f) 
new  venire  will  be  granted  in  case  of  reversal  of  judgment  in  favor 
of  defendant:  McCahan  v.  Wharton,  121  Pa.  424,  1888;  (g)  but  re- 
versal without  new  venire  is  not  of  itself  a  bar  to  second  action: 
Mercer  v.  Watson,  1  Watts  330, 1833;  Fries  v.  R.  R.,  98  Pa.  142,  1881; 
Wrasse  v.  Traction  Co.,  146  Pa.  417,  1891;  Ellis  v.  Ins.  Co.,  9  Pa. 
Super.  392, 1898;  Livingston  v.  School  Board,  15  Pa.  Super.  358,  1900; 
Spees  v.  Boggs,  204  Pa.  504, 1903;  Fry  v.  Glass  Co.,  219  Pa.  514, 1908; 
(h)  and  on  reversal  without  new  venire  court  may,  on  petition  show- 
ing plaintiff  had  no  cause  of  action,  amend  its  judgment  by  adding 
thereto  a  formal  judgment  for  defendant :  Nugent  v.  Traction  Co., 
183  Pa.  142,  1897;  (i)  new  venire  will  be  granted  where  case  was 
tried  on  erroneous  theory  as  to  proof  of  negligence:  MLxter  v.  Coal 
Co.,  152  Pa.  395,  1893;  (j)  or  where  judgment  for  defendant  n.  o.  v. 
on  points  reserved  is  reversed:  Wharton  v.  Williamson,  13  Pa.  273, 
1850;  Patton  v.  Ry.,  96  Pa.  169,  1880;  Blank  v.  Earley,  115  Pa.  359, 
1887;  Werneberg  v.  Pittsburg,  210  Pa.  267,  1905;  (k)  or  where  no 
motion  was  made  for  judgment  n.  o.  v.  for  defendant :  Light  v.  Miller, 
38  Pa.  Super.  408,  1909;  (1)  but  not  when  reversal  is  on  ground  that 
lower  court  should  have  taken  case  from  jury:  Mansfield  Coal  Co.  v. 
McEnery,  91  Pa.  185,  1879;  (m)  or  where  there  is  no  defense  on 
merits,  but  only  technical  defense:  Connellsville  Boro.  v.  Hogg,  156 
Pa.  326,  1893 ;  (n)  or  where  the  verdict  entered  below  is  correct : 
Klett  v.  Claridge,  31  Pa.  106,  1858;  (o)  in  case  of  general  verdict  on 
several  counts,  some  of  which  are  bad,  judgment  will  be  reversed 
and  new  trial  granted:  Shaffer  v.  Kintzer,  1  Binn.  537,  1808;  Harker 
v.  Orr,  10  Watts  245,  1890 ;  (p)  also  in  case  of  reversal  on  one  of  two 
questions  of  fact  where  it  is  impossible  to  say  on  which  verdict  is 
based:  Dick  v.  Williams,  130  Pa.  41,  1889;  (q)  new  venire  will  not  be 
awarded  where  judgment  is  reversed  on  ground  that  action  was  pre- 
324 


REVIEW  ON  APPEAL. 


§§228-31]  Excessive  Verdicts,  etc.  §228  (8)  (q)-(10) 

maturely  brought :  Miller  v.  Ralston,  1  S.  &  R.  309,  1815 ;  Reed  v.  Col- 
lins, 5  S.  &  R.  351,  1819;  Langer  v.  Parish,  8  S.  &  R.  134,  1822;  (r) 
new  trial  means  trial  of  entire  case  anew:  Kemmerer  v.  Young,  5 
Rawle  175,  1835 ;  Livingston  v.  School  Board,  15  Pa.  Super.  358,  1900. 

(9)  Excessive  or  Inadequate  Verdicts,  etc.    (a)  It  seems  the  court 
will  leave  the  question  of  excessive  verdict  to  be  first  disposed  of 
below  on  motion  for  new  trial:  Charles  v.  Bishoff,  1  Sad.  260,  1885; 
Smith  v.  Times  Pub.  Co.,  178  Pa.  481,  1896;  Stevenson  v.  Coal  Co., 

201  Pa.  112,  1902;  Robeson  v.  Pels,  202  Pa.  399,  1902;  Reed  v.  R.  R., 
210  Pa.  211,  1904;  (b)  under  Act  of  1891  court  has  power  to  review 
action  of  lower  court  in  refusing  to  set  aside  excessive  verdicts  and 
to  grant  new  trial,  but  will  do  so  only  in  exceptional  cases  where 
there  has  been  a  clear  abuse  of  discretion  by  lower  court :  Smith  v. 
Times  Pub.  Co.,  178  Pa.  481,  1896;  Wolf  v.  Traction  Co.,  181  Pa.  399, 
1897;  Shanahan  v.  Ins.  Co.,  6  Pa.  Super.  65,  1897;  Schenkel  v.  Trac- 
tion Co.,  194  Pa.  182,  1899;  Begley  v.  R.  R.,  201  Pa.  84,  1902;  Steven- 
son v.  Coal  Co.,  201  Pa.  112,  1902;  203  Pa.  316,  1902;  Neff  v.  R.  R., 

202  Pa.  371,  1902;  Marcy  v.  Brock,  207  Pa.  95,  1903;  Stauffer  v.  Read- 
ing, 208  Pa.  436,  1904;  Quigley  v.  R.  R.,  210  Pa.  162,  1904;  Wike  v. 
Woolverton,  26  Pa.  Super.  561, 1904;  Reed  v.  R.  R.,  210  Pa.  211,  1904; 
Moyer  v.  Phillips,  40  Pa.  Super.  1,  1909 ;  Hollinger  v.  Ry.,  225  Pa.  419, 
1909;  Harrisburg,  etc.,  Turnpike  Co.  v.  County,  225  Pa.  467,  1909; 
Rea  v.  R.  R.,  229  Pa.  106,  1910;  see  note  (24)   (p2),  this  section;  (c) 
same  rule  applies  in  cases  of  refusing  to  set  aside  inadequate  verdict: 
Palmer  v.  Pub.  Co.,  7  Pa.  Super.  594,  1898 ;  Reno  v.  Shallenberger,  8 
Pa.  Super.  436,  1898;  Halahan  v.  Cassidy,  12  Pa.  Super.  227,  1899; 
Woodward  v.  Traction  Co.,  17  Pa.  Super.  576, 1901 ;  Donoghue  v.  Trac- 
tion Co.,  17  Pa.  Super.  582,  1901;  (d)  or  in  refusing  to  set  aside  ver- 
dict on  ground  of  misconduct  of  jurors:  Mix  v.  North  American  Co., 
209  Pa.  636,  1904;  (e)  the  same  rules  apply  to  criminal  cases:  Com.  v. 
Houghton,  22  Pa.  Super.  52,  1903;  (f)  and  to  refusal  of  lower  court 
to  consider  additional  reasons  for  new  trial:  Com.  v.  McManiman,  27 
Pa.  Super.  304,  1904;  (g)  or  to  set  aside  verdict  against  defendant  for 
costs:  Com.  v.  Chartiers  Ry.,  28  Pa.  Super.  173,  1905;   (h)   but  in 
proper  case  appellate  court  may  award  new  trial  unless  plaintiff  remits 
certain  part  of  verdict :  Sturts  v.  Zeigler,  44  Pa.  Super.  124,  128,  1910. 

(10)  Scope  of  Review  by  Appellate  Court — General  Rule.     The 
appellate    court    will    review    only    such    matters    as    are    regularly 
brought  before  it  by  making  them  appear  on  the  face  of  the  record 

325 


REVIEW  ON  APPEAL. 


§228  (10) -(11)  (c)  Matters  Excepted  to  Below  [Chap.  15, 

of  the  proceedings.  As  matters  happening  on  the  trial  of  a  case  or- 
dinarily form  no  part  of  the  record,  it  is  necessary,  in  order  to 
obtain  a  review  of  them  on  appeal,  to  bring  them  on  the  record  either 
by  bill  of  exception  or  by  asking  that  a  transcript  of  the  proceedings 
be  filed  and  made  part  of  the  record.  (See  note  (11)  (a),  below,  and 
notes  to  §161.)  Where,  however,  there  is  a  fatal  defect  apparent  on 
face  of  record,  it  will  be  considered  by  appellate  court,  even  though 
no  exception  was  taken  below.  See  note  (11)  (e),  below. 

(11)  Matters  Excepted  to  Below,  (a)  The  appellate  court  will  re- 
view only  matters  objected  to  and  made  the  subject  of  an  exception  in 
the  lower  court:  Powell  v.  Sedgwiek,  5  Whar.  336,  1839;  Irwin's 
Ap.,  5  Whar.  577,  1840;  Dyott's  Est.,  2  W.  &  S.  557,  1841;  Morton  v. 
Funk,  6  Pa.  483,  1847;  Johnson's  Ap.,  9  Pa.  416,  1848;  Rearich  v. 
Swinehart,  11  Pa.  233,  1849;  McAdams  v.  Stillwell,  13  Pa.  90,  1850; 
Lower  Merion  Road,  18  Pa.  238,  1852;  Robinson  v.  Snyder,  25  Pa. 
203,  1855;  Ashton  v.  Sproule,  35  Pa.  492,  1860;  Duvall  v.  Darby,  38 
Pa.  56, 1860;  Guthrie  v.  Wilson,  40  Pa.  430,  1861;  Oswald  v.  Kennedy, 
48  Pa.  9,  1864;  Merkel  v.  Berks  Co.,  81%  Pa.  505,  1875;  Burdge  v. 
Weiler,  2  W.  N.  C.  502,  1876;  Zell  v.  Com.,  94  Pa.  258,  1880;  German- 
town  Ry.  Co.  v.  Walling,  97  Pa.  55,  1881;  Haines  v.  Com.,  100  Pa. 
317,  1882;  Montgomery  v.  Cunningham,  104  Pa.  349,  1883;  Gilmore  v. 
R.  R.,  104  Pa.  275,  1884;  Adamson's  Ap.,  110  Pa.  459,  1885;  McMeen 
v.  Com.,  114  Pa.  300, 1886 ;  Passenger  Ins.  Co.  v.  Birnbaum,  19  W.  N.  C. 
277,  1886;  McArthur  v.  Chase,  5  Sad.  67,  1887;  Dempsey  v.  Harm, 
20  W.  N.  C.  266,  1887;  Grantz  v.  Price,  130  Pa.  415,  1890;  Torrey  v. 
Scranton,  133  Pa.  173,  1890;  Huckstein  v.  Kelly,  139  Pa.  201,  1891; 
Bradwell  v.  Railway  Co.,  139  Pa.  404,  1891 ;  Finch  v.  Conrade,  154  Pa. 
326,  1893 ;  Rosenthal  v.  Ehrlicher,  154  Pa.  396,  1893 ;  Com.  v.  Fleming, 
157  Pa.  644,  1893;  Mixel  v.  Betz,  168  Pa.  1895;  Messmore  v. 
Morrison,  172  Pa.  300, 1895 ;  Galbraith  v.  Phila.  Co.,  2  Pa.  Super.  359, 
1896;  Harding  v.  Lloyd,  3  Pa.  Super.  293,  1897;  Ross  Twp.  Road,  5  Pa. 
Super.  85,  1903;  see  also  as  to  necessity  for  exceptions,  §161,  note  (3), 
and  cross  references;  (b)  provided  exception  was  taken  at  proper 
time :  Crosby  v.  Massey,  1  P.  &  W.  229,  1829 ;  Lyon  v.  Phillips,  106  Pa. 
57,  1884;  Wolf  v.  Ferguson,  129  Pa.  272,  1889;  Com.  v.  Mudgett,  174 
Pa.  211,  1896 ;  see  also  §161,  note  (6) ;  (c)  in  absence  of  exceptions, 
appellate  court  has  only  the  bare  record  before  it,  such  as  would  be 
sent  up  on  writ  of  certiorari,  and  nothing  else  can  be  considered: 
Drexel  v.  Man,  6  W.  &  S.  343,  1843;  Com.  v.  Ware,  137  Pa.  465,  1890; 

326 


REVIEW  ON  APPEAL. 


§§228-31]  Matters  Excepted  to  Below      §228  (11)  (e). (12)  (a) 

Com.  v.  Duff,  7  Pa.  Super.  415,  1898;  Com.  v.  Edmiston,  30  Pa.  Super. 
54,  1906;  (d)  and  the  appellant  cannot,  in  anticipation  of  a  reversal 
and  new  trial,  ask  court  to  pass  upon  the  correctness  of  an  instruc- 
tion not  excepted  to:  Troxell  v.  Mining  Co.,  213  Pa.  475,  1906;  (e) 
but  where  a  fundamental  error  is  apparent  on  face  of  record,  it  will 
be  considered  though  no  objection  was  taken  below:  Ritchie  v.  Hast- 
ings, 2  Yeates  433,  1799 ;  Grasser  v.  Eckhart,  1  Bin.  575,  1809 ;  Hoffer 
v.  Wightman,  5  Watts  205,  1832;  Frankstown  Road,  26  Pa.  472,  1852; 
Little  Meadows  Boro.,  28  Pa.  256,  1857;  Maher  v.  Ashmead,  30  Pa. 
344,  1858;  Bean's  Road,  35  Pa.  280,  1860;  Delaware  Canal  Co.  v.  Mc- 
Keen,  52  Pa.  117,  1865;  Hill  v.  Tionesta  Twp.,  129  Pa.  525,  1889; 
Summerson  v.  Hicks,  142  Pa.  344,  1891;  Gearing  v.  Lacher,  146  Pa. 
397,  1892;  O'Hara  Twp.  Road.  152  Pa.  319,  1893;  Hoffa  v.  Per- 
son, 1  Pa.  Super.  357,  1895;  Middleton  Road  Case,  15  Pa.  Super.  167, 
1900;  North  Shore  R.  R.  v.  Penna.  Co.,  193  Pa.  641,  1900;  Busquet's 
Est.,  206  Pa.  534,  1903;  Bushvalley  Twp.  v.  Allegheny  Co.,  25  Pa. 
Super.  595, 1904;  Hartley  v.Weideman,  28  Pa.  Super.  50, 1905;  Com.  v. 
Mitchell,  33  Pa.  Super.  345,  1907;  (f)  and  in  such  cases  objection 
may  be  taken  at  any  time:  Bean's  Road,  35  Pa.  280,  1860;  Middleton 
Road  Case,  15  Pa.  Super.  167,  1900 ;  North  Shore  R.  R.  v.  Penna.  Co., 
193  Pa.  641,  1900;  Bushvalley  Twp.  v.  Allegheny  Co.,  25  Pa.  Super. 
595,  1904;  (g)  and  reversal  may  be  decreed,  even  though  there  is 
a  right  to  appeal  to  another  court:  Delaware  Canal  Co.  v.  McKeen, 
52  Pa.  117,  1866;  (h)  a  general  objection  to  evidence  admissible  for 
some  purposes  will  not  be  sustained,  and  therefore  appellate  court 
will  reverse  action  of  lower  court  overruling  general  objection  to  evi- 
dence competent  in  part  and  incompetent  as  to  remainder:  Atchison 
v.  McCulloch,  5  Watts  13,  1836;  Peters  v.  Horbach,  4  Pa.  134,  1846; 
Cullum  v.  Wagstaff,  48  Pa.  300,  1864;  Wall  v.  Building  Asso.,  3  Leg. 
Gaz.  28,  1871;  Robinson  v.  Buck,  71  Pa.  386,  1872;  Laubach  v.  Lau- 
bach,  73  Pa.  387, 1873;  see  §187,  note  (4)  (b)  (c) ;  (i)  on  appeal  from 
orphans'  court,  case  will  be  decided  according  to  equity  and  justice 
without  strict  regard  to  objections  taken  or  errors  assigned :  see  §229, 
note  (2)  (a). 

(12)  Clerical  Errors,  (a)  As  a  general  rule,  the  appellate  court 
will  not  reverse  for  clerical  errors,  committed  in  course  of  proceed- 
ings in  lower  court,  which  might  have  been  corrected  if  called  to  at- 
tention of  that  court.  Thus  the  appellate  court  will  not  reverse  for 
clerical  error  in  leaving  blank  the  month  in  which  writ  of  error  was 

327 


REVIEW  ON  APPEAL. 


§228  (12)  (a)-(13)  (f)          Technical  Errors  [Chap.  15, 

returnable:  Eeed  v.  Collins,  5  S.  &  R.  351,  1819;  (b)  or  in  not  entering 
judgment  on  record:  Shaw  v.  Boyd,  12  Pa.  215,  1849;  (c)  or  because 
docket  entries,  by  mistake,  were  kept  in  oyer  and  terminer  instead  of 
quarter  sessions:  Com.  v.  Gibbons,  3  Pa.  Super.  408,  1896;  (d)  or 
because  proceedings  were  entitled  in  wrong  court:  Centreville  School 
District's  Ap.,  3  W.  N.  C.  75,  1876;  (e)  or  because  commission  in  lun- 
acy was  sued  out  in  wrong  court:  Shenango  Twp.  v.  Wayne  Twp.,  34 
Pa.  184,  1859 ;  (f )  or  because  of  omission  of  clerk  in  order  of  court  to 
commissioners  to  divide  township:  Penn  Township,  8  Pa.  23,  1848; 
(g)  or  in  order  to  viewers  appointed  to  vacate  highway:  Allentown 
Road,  5  Whar.  442,  1840 ;  (h)  or  for  mistake  in  date  of  entry  of  rule : 
Mohr  v.  Warg,  26  Pa.  106,  1856;  (i)  or  mistake  in  date  in  stating 
cause  of  action:  Kraft  v.  Gilchrist,  31  Pa.  470,  1858;  (j)  but  judgment 
erroneously  entered  by  prothonotary  will  be  stricken  off  by  appel- 
late court :  Guthrie  v.  Reid,  107  Pa.  251,  1885 ;  see  also  next  note  and 
note  (28). 

(13)  Technical  Defects  and  Irregularities,  (a)  Defects  in  form, 
amendable  below,  will  not  be  considered  cause  for  reversal:  Steckel 
v.  Steckel,  28  Pa.  233,  1857;  Huntingdon,  etc.,  R.  R.  v.  McGovern,  29 
Pa.  78,  1857;  Robertson  v.  Reed,  47  Pa.  115,  1864;  (b)  nor  defects  in 
pleadings :  Melchoir  v.  Ralston,  22  Yeates  154, 1796 ;  Shaw  v.  Redmond, 
11  S.  &  R.  27,  1824;  Morris  v.  Buckley,  11  S.  &  R.  168,  1824;  Bar- 
rington  v.  Washington  Bank,  14  S.  &  R.  405,  1826;  Thompson 
v.  Cross,  16  S.  &  R.  350,  1827;  Sauerman  v.  Weckerly,  17  S.  & 
R.  116,  1827;  Baxter  v.  Graham,  5  Watts  418,  1836;  Morton's  Case,  3 
Whar.  170,  1837;  Jones  v.  Hartley,  3  Whar.  178,  1837;  Hall  v.  Law,  2 
W.  &  S.  121,  1841;  Glenn  v.  Copeland,  2  W.  &  S.  261,  1841;  Long  v. 
Long,  4  Pa.  29,  1846;  Blackstock  v.  l^eidy,  19  Pa.  335,  1852;  Good 
Intent  Co.  v.  Hartzell,  22  Pa.  277,  1853;  Cunningham  v.  McCue,  31 
Pa.  469,  1858;  Shoenberger  v.  Zook,  34  Pa.  24,  1859;  Roop  v.  Roop, 
35  Pa.  59,  1860 ;  Barker  v.  McCreary,  66  Pa.  612,  1870 ;  Bailey  v.  Coal 
Co.,  139  Pa.  213,  1891;  (c)  especially  where  record  shows  no  recov- 
ery could  be  had  under  any  form  of  pleading:  Com.  v.  Me  Williams, 
11  Pa.  61,  1849;  (d)  nor  for  defective  count,  where  judgment  was 
entered  on  good  one:  McCredy  v.  James,  6  Whar.  547,  1841;  (e)  nor 
want  of  replication  to  statute  of  limitation:  Bricker  v.  Lightner,  40 
Pa.  197,  1861;  (f)  nor  variance  not  affecting  merits,  which  was  re- 
medial in  lower  court :  Newlin  v.  Palmer,  11  S.  &  R.  98,  1824 ;  Shirk  v. 
Mingle,  13  S.  &  R.  29,  1825;  Miller  v.  Miller,  4  Pa.  317,  1846;  Penn- 

328 


REVIEW  ON  APPEAL. 


§§228-31]  Technical  Errors  §  228  (13)  (f  )-(t) 

sylvania  Hall,  5  Pa.  204,  1847;  Morton  v.  Funk,  6  Pa.  483,  1847; 
Shoenberger's  Exrs.  v.  Hackman,  37  Pa.  87,  1860;  Passenger 
Ins.  Co.  v.  Birnbaum,  116  Pa.  565,  1887;  Walter  v.  Transue,  22  Pa. 
Super.  617,  1903;  Com.  v.  Singer,  31  Pa.  Super.  597,  1906;  (g)  espec- 
ially after  three  trials  on  merits :  Hudson  v.  Watson,  11  Pa.  Super.  266, 
1899;  (h)  nor  misjoinder  of  parties;  Phila.,  Wash.  &  Bait.  R.  R.  v. 
Conway,  112  Pa.  511,  1886;  Kelley  v.  Kelley,  182  Pa.  131,  1897;  (i) 
nor  because,  in  drawing  jury,  the  order  named  in  Act  April  14,  1834, 
P.  L.  363,  §120,  2  Purd.  2070,  pi.  52,  was  not  followed,  in  absence  of  any 
allegation  of  improper  motive:  Com.  v.  Zillafrow,  207  Pa.  274,  1903; 
(j)  appellate  court  will  review  action  of  lower  court  on  interlocutory 
motions,  tLough  made  more  than  six  months  prior  to  appeal:  Heilman 
v.  McKinstry,  18  Pa.  Super.  70,  1901;  (k)  where  negligence  charged  is 
not  proven,  other  circumstances  alleged  as  negligence  will  not  be  con- 
sidered: Morris  v.  Transit  Co.,  215  Pa.  317,  1906;  (1)  it  is  doubtful 
whether  question  of  privilege  in  service  of  writ  can  be  considered: 
Wood  v.  Boyle,  177  Pa.  620,  1895;  (m)  appellate  court  will  reverse 
where  improper  items  are  included  in  taxation  of  costs:  McClain  v. 
Lawrence  County,  14  Pa.  Super.  273,  1900;  (n)  or  where  record  is  in- 
complete and  does  not  support  judgment:  Hopper  v.  McMurray,  13 
L.  I.  14,  1856;  (o)  or  where  judgment  by  default  was  entered  without 
declaration:  Ritchie  v.  Hastings,  2  Yeates  433,  1799;  (p)  or  where 
judgment  is  entered  against  a  party  not  served:  Curtis  v.  Patton,  6 
S.  &  R.  135,  1820;  Brown  v.  Kelso,  2  P.  &  W.  427,  1831;  (q)  but  ap- 
pellate court  will  not  consider  effect  of  judgment  on  defendant  not 
served,  where  judgment  is  against  both  defendant  and  terre-tenant : 
Connor  v.  Schildt,  16  Pa.  Super.  88,  1901 ;  (r)  where  record  shows 
that  suit  was  brought  before  cause  of  action  arose,  case  will  be  re- 
versed :  Gordon  v.  Kennedy,  2  Binn.  287,  1810 ;  Miller  v.  Ralston,  1  S. 
&  R.  309,  1815;  McLaughlin  v.  Parker,  3  S.  &  R.  144,  1817;  Reed  v. 
Collins,  5  S.  &  R.  351,  1819;  Langer  v.  Parish,  8  S.  &  R.  134,  1822; 
Roud  v.  Griffith,  11  S.  &  R.  130,  1824;  (s)  but  not  where  record  is  in 
such  condition  that  it  is  impossible  to  determine  facts:  Stevenson's 
Est.,  186  Pa.  262,  1898;  (t)  where  on  second  trial  defendant  interposes 
technical  defense  not  raised  on  first  trial  the  fact  that  new  action 
would  be  barred  by  the  statute  of  limitations  will  be  considered  in 
deciding  doubtful  question:  Rees  &  Son  (Jo.  v.  Society,  44  Pa.  Super. 
381,  385,  1910. 

329 


REVIEW  ON  APPEAL. 


§228  (14)-(15)  (a)  Theory  of  Case  [Chap.  15, 

(14)  Theory  of  Case,     (a)  The  appellate  court  will  not  consider 
case  on  theory  or  grounds  different  from  that  adopted  by  parties  in 
court  below,  unless  there  is  some  radical  error  in  proceedings:  Taylor 
v.  Sattler,  6  Pa.  Super.  229, 1897;  Turner  v.  Whitaker,  9  Pa.  Super.  83, 
1898;  Troubat  Ave.,  10  Pa.  Super.  27,  1899;  Fidler  v.  Hershey,  90  Pa. 
363,  1889 ;  McKellar  v.  Seeds,  10  Pa.  Super.  167,  1899 ;  Com.  v.  Price, 
15  Pa.  Super.  342,  1901;  Jenkins  v.  McMichael,  17  Pa.  Super.  476, 
1901;  Crown  Slate  Co.  v.  Allen,  199  Pa.  239,  1901;  Welch  v.  Miller, 
210  Pa.  204,  1905;  Carpenter  v.  Lancaster,  212  Pa.  581,  1905;  Moore 
v.  Adams,  29  Pa.  Super.  239,  1905;  Lehman  v.  Lehman,  215  Pa.  344, 
1906;  Foehr  v.  R.  R.,  40  Pa.  Super.  7,  1909;   (b)  and  it  is  error  for 
lower  court  to  introduce  in  his  charge  a  theory  of  his  own  unsupported 
by  the  evidence  of  either  party:  Carter  v.  Henderson,  224  Pa.  319, 
1909;  see  next  note. 

(15)  Questions  not  Raised  Below,     (a)   Appellate  court  will  not 
consider  objections  which  were  not  raised  in  court  below:  Keller  v. 
Nutz,  5  S.  &  R.  246, 1819;  Dorman  v.  Turnpike  Co.,  3  Watts  126,  1834; 
Maus  v.  Maus,  6  Watts  275,  1837;  Snevely  v.  Egle,  1  W.  &  S.  480, 
1841;  Drexel  v.  Man,  6  W.  &  S.  343,  1843;  Miller  v.  Miller,  4  Pa.  317, 
1846;  Morton  v.  Funk,  6  Pa.  483,  1847;  Wollenweber  v.  Ketterline,  17 
Pa.  389,  1851;  Bingham  v.  Guthrie,  19  Pa.  418,  1852;  Simmond's  Est., 
19  Pa.  439, 1852;  Erie  v.  Schwingle,  22  Pa.  384,  1853;  Wright  v.  Wood, 
23  Pa.  120,  1854;  Convers  v.  Vanatta,  24  Pa.  257, 1855;  Weaver's  Est., 
25  Pa.  434,  1855;  Spencer  v.  Kunkle,  2  Grant  406,  1855;  Quinn  v. 
Woodhouse,  26  Pa.  333, 1855;  Ruch  v.  Morris,  28  Pa.  245, 1857;  Berger 
v.  Palethorp,  2  W.  N.  C.  297,  1874;  Lane  v.  Smith,  103  Pa.  415,  1883; 
Cope  v.  Kidney,  115  Pa.  228, 1886;  Bartholomew  v.  Lehigh  Co.,  148  Pa. 
82,  1892;  Ross  Twp.  Road,  5  Pa.  Super.  85,  1898;  McGraw  v.  Ins.  Co., 
5  Pa.  Super.  488,  1897;  Com.  v.  Preston,  188  Pa.  429,  1898;  Fidelity 
Title  &  Tr.  Co.  v.  Bell,  188  Pa.  637,  1898;  Becker  v.  Goldachild,  9  Pa. 
Super.  50,  1898;  Livingston  v.  School  Board,  9  Pa.  Super.  110,  1898; 
Jones  v.  Harvey,  9  Pa.  Super.  326,  1899;  Crawford  v.  Pyle,  190  Pa. 
263,  1899;  Troubat  Ave.,  10  Pa.  Super.  27,  1899;  MacKellar  v.  Seeds, 
10  Pa.  Super.  167, 1899;  Swoope  v.  Wakefield,  10  Pa.  Super.  342, 1899; 
Com.  v.  Price,  15  Pa.  Super.  342,  1900 ;  Ulysses  Co.  v.  Ins.  Co.,  20  Pa. 
Super.  384,  1902;  Provident  Trust  Co.  v.  Phila.,  202  Pa.  78,  1902; 
Henry  v.  Zurflish,  203  Pa.  440,  1902;  Payne's  Est.,  204  Pa.  535,  1903; 
Shannon  v.  Castner,  21  Pa.   Super.  294,  1903;  Lauer  Brew.  Co.  v. 
Chmielewski,  206  Pa.  90,  1903;  Black  v.  Black,  206  Pa.  116,  1903; 

330 


REVIEW  ON  APPEAL. 


§§228-31]  Questions  not  Raised  Below  §228  (15)  (a)-(j) 

Kuntz  v.  Railroad,  206  Pa.  162,  1903;  Com.  v.  Schoen,  25  Pa.  Super. 
211,  1904;  Johnson's  Est.,  29  Pa.  Super.  255,  1905;  Rotograph  Co.  v. 
Cressman,  41  Pa.  Super.  14,  1909;  Benner  v.  Fire  Asso.,  229  Pa.  75, 
1910;  Cambria  Iron  Co.  v.  Lidy,  226  Pa.  122,  1910;  Grothe's  Est.,  229 
Pa.  186,  1910;  Shuman's  Est.,  45  Pa.  Super.  587,  1911;  Hottenstein  v. 
Johnson,  44  Pa.  Super.  562,  1910;  see  also  note  (11),  above;  (b) 
unless  in  exceptional  cases  involving  a  fundamental  objection:  Hoffa 
v.  Person,  1  Pa.  Super.  357,  1896 ;  Taylor  v.  Burrell,  7  Pa.  Super.  461, 
1898;  Provident  Trust  Co.  v.  Phila.,  202  Pa.  78,  1902;  Kelly  v.  Trac- 
tion Co.,  204  Pa.  623, 1903;  Bousquet's  Est.,  206  Pa,  534,  1903;  see  also 
note  (11)  (e),  this  section;  (c)  but  Act  of  April  27,  1855,  P.  L.  368,  2 
Purd.  2276,  pi.  11,  relating  to  presumption  of  payment,  may  be  plead- 
ed for  first  time  in  appellate  court:  DeHaven's  Est.,  25  Pa.  Super. 
507,  1904;  (d)  and  where,  in  action  for  specific  performance  of  agree- 
ment to  sell  land,  objection  is  made  to  contract  because  of  insuffi- 
ciency of  description  under  statute  of  frauds,  appellate  court  can  de- 
cide question  on  merits,  though  statute  was  not  pleaded :  Barnes  v. 
Rea  (No.  2),  219  Pa.  287,  1908;  (e)  when  jurisdiction  of  a  jus- 
tice was  not  raised  below,  question  will  be  considered  only  from 
record,  of  which  evidence  and  charge  form  no  part:  Brands  v.  Wise, 
16  Pa.  Super.  189, 1901 ;  (f )  exceptions  to  matters  outside  record  will 
not  be  considered:  Summerville  v.  Painter,  44  Pa.  110;  Robinson  v. 
Hodgson,  4  Leg.  Gaz.  339,  1872;  (g)  nor  will  court  consider  different 
grounds  for  objecting  to  evidence  than  those  specified  in  lower  court : 
Smith  v.  Craig,  2  Pa.  153, 1845;  Far  v.  Swain,  2  Pa.  245,  1845;  Hobson 
v.  Croft,  9  Pa.  363,  1848;  Mills  v.  Buchanan,  14  Pa.  59,  1850;  Wollen- 
weber  v.  Ketterlinus,  17  Pa.  389, 1851 ;  Blackstock  v.  Leidy,  19  Pa.  335, 
1852 ;  Winton  v.  Little,  9  W.  N.  C.  37,  1880 ;  Merriman  v.  McManus, 
102  Pa.  102,  1883;  McGrain  v.  Ins.  Co.,  5  Pa.  Super.  488,  1897;  Danley 
v.  Danley,  179  Pa.  170,  1897;  Crawford  v.  Pyle,  190  Pa.  263,  1899; 
Payne's  Est.,  204  Pa.  535,  1903;  Benner  v.  Fire  Asso.,  229  Pa.  75, 
1910;  Roebling's  Sons  Co.  v.  Constr.  Co.,  231  Pa.  261,  1910;  Mor- 
gan v.  Gamble,  230  Pa.  165, 1911 ;  (h)  nor  errors  not  assigned :  Omit  v. 
Com.,  21  Pa.  426,  1853 ;  (i)  unless  justice  plainly  requires  it :  Ander- 
son v.  Long,  10  S.  &  R.  55,  1823;  Hoffer  v.  Wightman,  5  Watts  205, 
1832;  Bean's  Road,  35  Pa.  280,  1860;  (j)  or  record  shows  want  of  jur- 
isdiction: Frankstown  Road,  26  Pa.  472,  1856;  Little  Meadows  Boro., 
28  Pa.  256,  1857;  Bean's  Road,  35  Pa.  280,  1860;  O'Hara  Twp.  Road, 
152  Pa.  319,  1893;  Middletown  Road,  15  Pa.  Super.  167,  1900;  see  also 
cases,  note  (11)  (e),  above. 

331 


REVIEW  ON  APPEAL. 


§228  (16)-(17)(a)  Remarks  of  Counsel  [Chap.  15, 

(16)  Remarks  of  Counsel,   (a)   It  was  formerly  lield  that  there 
was  no  way  in  which   objectionable   remarks   by   counsel   could   be 
brought  on  record  for  purpose  of  assigning  errors:  Com.  v.  Nicely, 
130  Pa.  261,  1889:  McCloskey  v.  R.  R.,  156  Pa.  254,  1893;   (b)  but 
under  authority  of  later  cases  it  may  be  accomplished  by  at  once  call- 
ing attention  of  trial  judge  to  alleged  improper  remarks,  so  that  they 
can  be  taken  down  by  the  official  stenographer,  and  taking  exception 
to  action  of  court  thereon;  or  they  can  be  written  down  and  verified 
by  affidavit  of  one  who  heard  them  and  afterwards  made  part  of 
record   by  sealing  exceptions:   Com.  v.  Weber,  167  Pa.  153,   1895; 
Huklen  v.  R.  R.,  169  Pa.  1,  1895;  Com.  v.  Windish,  176  Pa.  167,  1896; 
Com.  v.  Smith,  2  Pa.  Super.  474,  1896;  Littell  v.  Young,  5  Pa.  Super. 
205,  1897;  Guckaven  v.  Traction  Co.,  203  Pa.  521,  1902;  Com.  v.  Dor- 
man  (No.  2),  22  Pa.  Super.  20,  1903;  (c)  but  if  trial  judge  refuses  to 
certify  to  correctness  of  language  alleged  to  have  been  used,  such 
language  is  not  part  of  record:  Com.  v.  Church,  17  Pa.  Super.  39,  1901; 
(d)  where  the  alleged  remarks  are  brought  before  court  by  affidavits 
of  persons  who  heard  them,  such  affidavits  become  part  of  record,  and 
refusal  of  court  to  withdraw  juror  for  such  cause  may  be  assigned  for 
error:  Holden  v.  R.  R.,  169  Pa.  1,  1895;   (e)   objectionable  remarks 
should  first  be  brought  before  lower  court  by  motion  for  new  trial: 
McNeil  Co.  v.  Steel  Co.,  207  Pa.  493,  1904;  (f)  unless  objectionable 
language  is  brought  on  the  record  in  one  of  the  methods  mentioned 
above,  it  cannot  be  considered  by  appellate  court :  Com.  v.  McClellan, 
42  Pa.  Super.  504,  1910;  Com.  v.  Polichinus,  229  Pa.  311,  1911;  see 
note  (29),  below,  especially  (i),  (k)  and  (1)  of  said  note. 

(17)  Presumption  of  Regularity,     (a)    The  appellate  court  will 
presume  that  all  proceedings  by  the  trial  court  were  regular  and  that 
its  officers  regularly  performed  all  acts  necessary  to  legal  trial  of  the 
cause :  Melchoir  v.  Ralston,  2  Yeates  154,  1796 ;  McFarlaud  v.  Twp.,  12 
S.  &  R.  297,  1825;  Munderbach  v.  Lutz,  14  S.  &  R.  220,  1826;  Fitzsim- 
mons  v.  Leckey,  3  P.  &  W.  Ill,  1831;  Gram's  Ap.,  4  Watts  43,  1835; 
Browning  v.  McManus,  1  Whar.  177,  1836 ;  Baxter  v.  Graham,  5  Watts 
418,  1836 ;  Cabargo  v.  Seeger,  17  Pa.  514,  1851 ;  Long  v.  McGuore,  22 
Pa.  163,  1853;  Girts  v.  Com.  22  Pa.  351,  1858;  McCaskey  v.  Graff,  23 
Pa.  321,  1855;  Bull's  Ap.,  24  Pa.  286,  1855;  Beale  v.  Com.,  25  Pa.  11, 
1855;  Neil's  Est.,  27  Pa.  208,  1856;  Bryan  v.  Com.,  27  Pa.  284,  1856; 
Walls  v.  Wilson,  28  Pa.  514,  1856;  Bemus  v.  Clark,  29  Pa.  251,  J857; 
Weaver  v.  Com.,  29  Pa.  445,  1857;  Cromelien  v.  Brink,  29  Pa.  522, 

332 


REVIEW  ON  APPEAL. 


§§228-31]  Presumption  of  Regularity  §  228  (17)  (a)-(g) 

1850;  Cathcart  v.  Com.,  37  Pa.  108,  1860;  Eldred  v.  Hazlett,  38  Pa.  16, 
1861;  Rogers  v.  Whiteley,  38  Pa.  137, 1861;  Wagner's  Ap.,  43  Pa.  102, 
1862 ;  Delaware  Canal  Co.  v.  Com.,  60  Pa.  367,  1869 ;  Byrne  v.  Gross- 
man, 65  Pa.  310, 1870;  Hepburn's  Ap.,  65  Pa.  468, 1870;  Rosenberry's 
Ap.,  31  L.  I.  101,  1874;  Vensel  v.  Coiner,  31  L.  I.  373,  1874;  Kiser  v. 
Vanleer,  2  W.  N.  C.  561  1876;  Moreland  Twp.  Overseers  v.  Benton 
Twp.  Poor  Dist.,  3  W.  N.  C.  20,  1876;  Wilcox  v.  Payne,  88 
Pa.  154,  1878;  Robb's  Ap.,  1  Penny.  436,  1881;  Wise  v.  Allen, 
9  Sad.  561,  1888;  Morrison'  v.  Nevin,  130  Pa.  344,  1889; 
Sondheimer  v.  Hoover,  144  Pa.  221,  1891;  Walter  v.  Sun  Fire 
Office,  165  Pa.  381,  1894;  Pittsburg  v.  Maxwell,  179  Pa.  553,  1897; 
Miller  v.  Lash,  4  Pa,  Super.  292,  1897;  Ross  Twp.  Road,  5  Pa.  Super. 
85, 1897;  Miller's  License,  8  Pa.  Super.  223,  1898;  Quinn's  License,  11 
Pa.  Super.  554,  1899;  (b)  that  all  matters  of  fact  have  been  properly 
submitted  by  lower  court:  Gifford  v.  Gifford,  27  Pa.  202,  1857;  Storch 
v.  Carr,  28  Pa.  135,  1857;  (c)  even  though  there  is  a  formal  defect 
in  record,  presumption  of  regularity  in  partition  proceedings  arises 
after  lapse  of  twenty  years:  Vensel  v.  Coiner,  31  L.  I.  373,  1874;  (d) 
the  burden  is  on  appellant  to  show  affirmatively  from  the  record  itself 
the  particular  error  complained  of:  Bradley  v.  Flowers,  4  Yeates  436, 
1806 ;  Munderbach  v.  Lutz,  14  S.  &  R.  220, 1826 ;  Fitsimmons  v.  Leckey, 
3  P.  &  W.  Ill,  1831 ;  Baxter  v.  Graham,  5  Watts  418, 1836 ;  Cabargo  v. 
Seegar,  17  Pa.  514,  1851;  Plank-Road  Co.  v.  Rineman,  20  Pa.  99,  1852; 
Hartman  v.  Ins.  Co.,  21  Pa.  466, 1854;  McCaskey  v.  Graff,  23  Pa.  321, 
1855;  Allegheny  v.  Nelson,  25  Pa.  332,  1855;  Bryan  v.  Com.,  27  Pa. 
284,  1856;  Storch  v.  Carr,  28  Pa.  135,  1857;  Aiken  v.  Stewart,  63 
Pa.  30,  1869;  Sorg  v.  St.  Paul's  Congregation,  63  Pa.  156,  1869; 
Kille  v.  Edge,  79  Pa.  15,  1875;  Hill  v.  Prescott,  31  L.  I.  373, 
1874;  Weishert  v.  Orris,  32  L.  I.  283, 1875;  Riser  v.  Van  Leer,  2  W.  N. 
C.  561, 1876;  Cumberland  Val.  R.  R.  v.  Rhoadarmer,  107  Pa.  214,  1884; 
Kimelewski  v.  Com.,  39  Pa.  Super.  308,  1909 ;  Com.  v.  Stanley,  39  Pa. 
Super.  402,  1909;  see  also  note  (1)  (b),  this  section,  and  §187,  note 
(1)  (a) ;  (e)  where  appellate  court  reversed  order  quashing  indict- 
ment and  awarded  procedendo,  on  subsequent  appeal  presumption  is 
that  all  grounds  for  quashing  were  presented  and  passed  upon  on  first 
appeal:  Com.  v.  Sober,  22  Pa.  Super.  22,  1903;  (f)  there  is  no  pre- 
sumption that  jury  heard  or  were  influenced  by  remarks  of  court  not 
addressed  to  them:  Fraim  v.  Ins.  Co.,  170  Pa.  151,  1897;  (g)  where 
appellate  court  is  not  furnished  with  copy  of  special  Act  of  Assem- 

333 


REVIEW  ON  APPEAL. 


§228  (18)  (a)-(e)  Evidence— Findings  [Chap.  15, 

bly,  it  will  presume  lower  court  placed  proper  construction  on  it: 
Steiner  v.  Loan  Co.,   98  Pa.  Super.  591,  1882. 

(18)  Evidence — Findings,  (a)  The  appellate  court  will  review 
evidence  given  below  for  purpose  of  determining  the  law  of  the  case, 
but  it  will  not  review  it  for  purpose  of  determining  its  weight,  except 
to  consider  the  question  whether  or  not  there  was  any  evidence  to 
sustain  the  verdict.  Questions  of  fact  passed  upon  by  the  court  below 
will  be  reviewed  only  in  case  of  manifest  and  gross  error.  The  same 
rule  applies  to  findings  of  fact -by  masters,  referees,  arbitrators  and 
auditors,  (b)  Thus  where  a  case  is  fairly  tried  without  any  errors  ap- 
pearing on  the  record,  a  verdict  rendered  on  the  conflicting  evidence 
of  witnesses  whose  credibility  is  within  the  province  of  jury,  is -con- 
clusive and  will  not  be  reviewed  on  appeal:  Andrews  v.  Andrews,  5 
S.  &  R.  374, 1819;  Wilkins  v.  Boyce,  3  Watts  39, 1834;  Inman  v.  Kutz, 
10  Watts  90,  1840 ;  Bartlett  v.  Kingan,  19  Pa.  341,  1852 ;  Kames  v. 
Thomas,  1  W.  N.  C.  189, 1873 ;  Gates  v.  Watt,  127  Pa.  20, 1889 ;  Guyer 
v.  Port,  155  Pa.  322,  1893;  McBride  v.  Rinard,  172  Pa.  542,  1895; 
Christner  v.  John,  2  Pa.  Super.  78,  1896 ;  Carson  v.  Bromley,  184  Pa. 
549,  1898;  Rosenagle  v.  Palmer,  186  Pa.  32,  1898;  Sager  v.  Patterson, 
15  Pa.  Super.  147,  1900;  Sprout  v.  Eagal,  193  Pa.  389,  1900;  Fleming 
v.  Dixon,  194  Pa.  67,  1900;  Robeson  v.  Pels,  202  Pa.  399,  1902;  Kelly 
v.  Traction  Co.,  204  Pa.  623,  1903;  Williams  v.  Williams,  206  Pa.  644, 
1903;  Columbia  Fire  Proofing  Co.  v.  Paper  Co.,  207  Pa.  232,  1903; 
Winslow  Bros.v.  Du  Puy,  208  Pa.  98,  1904;  Lazzari  v.  R.  R.,  28  Pa. 
Super.  175,  1905;  Stoner  v.  Honse,  28  Pa.  Super.  485,  1905;  Hays  v. 
Carter,  226  Pa.  468,  1910;  (c)  questions  of  fact  are  reviewable  only 
so  far  as  necessary  to  determine  questions  of  law:  Figard  v.  Griffith, 
1  Pitts.  157,  1854;  Kepler  v.  Lumber  Co.,  209  Pa.  244,  1904;  (d)  but 
under  the  Act  of  1891,  appellate  court  has  power  to  modify  verdicts 
in  certain  cases  (see  note  (4),  this  section),  and  to  supervise  discre- 
tions of  lower  court  in  refusing  new  trial  where  verdict  is  grossly  in- 
adequate or  excessive  (see  note  (9),  this  section) ;  (e)  and  an  order  of 
trial  court  offering  choice  between  reduction  of  damages  and  new  trial 
cannot  be  assigned  as  error:  Meckes  v.  Water  Co.,  203  Pa.  13,  1902; 
see  the  Act  of  April  22,  1905,  P.  L.  286,  5  Purdon  5848,  pi.  7, 
(§88  (C),  above),  providing  for  appeal  from  allowance  or  refusal 
of  judgment  n.  o.  v.,  and  also  Com.  v.  Hanley,  15  Pa.  Super.  271,  1901, 
as  to  practice  in  obtaining  review  of  evidence  prior  to  Act  of  1905, 
where  evidence  was  deemed  insufficient  to  sustain  verdict;  (f)  ad- 

334 


REVIEW  ON  APPEAL. 


§§228-31]  Evidence— Findings  §  228  ( 18)  (f  )-(h) 

mission  of  incompetent  evidence  is  not  reversible  error  if  there  is  suf- 
ficient competent  evidence  to  sustain  findings:  Sawtelle's  Ap.,  84  Pa. 
306, 1877;  see  also  note  (25)  (e),  this  section;  (g)  findings  of  fact  by  a 
judge  of  the  lower  court  will  not  be  reviewed  unless  error  is  clearly 
and  conclusively  shown:   Spear  v.  Jamieson,  2  S.  &  R.  530,  1816; 
Righter  v.  Rittenhouse,  3  Rawle  273,  1832;  Robinson  v.  Narber,  65 
Pa.  85,  1870;  Knicherbacker  Ins.  Co.  v.  Gorbach,  70  Pa.  150,  1871; 
Germantown  Ave.  Case,  99  Pa.  479,  1882;  Hanna  v.  Clark  (No.  2),  204 
Pa.  149, 1903;  Feagley  v.  Norbeck,  127  Pa.  238, 1889;  Owen's  Case,  140 
Pa.  565,  1891;  Spring  Twp.  Overseers  v.  Walker  Twp.,  1  Pa.  Super. 
383,  1895 ;  Smith  v.  Borough,  3  Pa.  Super.  495,  1896 ;  Stockett  v.  Ryan, 
176  Pa.  71,  1896;  Lasher  v.  Medical  Co.,  3  Pa.  Super.  571,  1897;  Light 
v.  Ry.,  4  Pa.  Super.  427,  1897;  Lowry's  Est.,  6  Pa.  Super.  143,  1897; 
Gimber's  Est.,  184  Pa.  436,  1898;  Sturgeon  v.  Stevens,  186  Pa.  350, 
1898;  Barlott  v.  Forney,  187  Pa.  302,  1898;  Milton  Boro.  Overseers  v. 
Overseers,  9  Pa.  Super.  204,  1898;  First  Nat.  Bank  v.  Coal  Co.,  210 
Pa.  76,  1904;  McArdle's  Est.,  28  Pa.  Super.  106,  1905;  Emery  Lumber 
Co.  v.  County,  28  Pa.  Super.  451,  1905;  Fidelity  Co.  v.  Harder,  212 
Pa.  96, 1905 ;  York  Haven  Water  Co.  's  Ap.,  212  Pa.  622, 1905 ;  Phoenix 
Press  v.  Mackenzie,  32  Pa.  Super.  183,  1907;  Locher  v.  Byer,  218,  Pa. 
574,  1907;  Mill  Creek  Boro.  Case,  32  Pa.  Super.  465,  1907;  Canavan  v. 
Paye,  34  Pa.  Super.  91,  1907;  Dickey  v.  Norris,  216  Pa.  184,  1907; 
Jones  v.  Weir,  217  Pa.  321,  1907;  Osterman  v.  Patterson,  219  Pa.  162, 
1907;  Conrad  v.  Conrad,  36  Pa.  Super.  154,  1908;  Duke  v.  Gas  Co.,  220 
Pa.  348,  1908;  Strause  v.  Berger,  220  Pa.  367,  1908;  Furbush's  Est., 
220  Pa.  166, 1908;  Rahn  Twp.  Sch.  Dist.  v.  Coal  Co.,  221  Pa.  141, 1908; 
People's  Bank  v.  Stroud,  223  Pa.  33,  1909;  Stokes  v.  Compton,  38 
Pa.  Super.  474,  1909;  West  Chester  Boro.  v.  Tel.  Co.,  38  Pa.  Super. 
603,   1909;   Kinney's   Case,   39   Pa.   Super.   195,   1909;   McManus   v. 
Watson,    223   Pa.   581,   589,   1909;    Snyder   v.    Smyth,    224   Pa.   36, 
1909;    Scott's  Pet.,  231  Pa.   311,   1911;    (h)    especially  where  find- 
ings   depend    on    credibility    of    witnesses:    Cowan's    Est.,    184   Pa. 
339,  1898;  Lafferty's  Est.,  184  Pa.  502,  1898;  Hancock  v.  Melloy,  187, 
Pa.  371,  1898;  Mackintyre  v.  Jones,  9  Pa.  Super.  543,  1899;  Stein- 
meyer  v.  Siebert,  190  Pa.  471,  1899;  Murphy's  Est.,  21  Pa.  Super. 
384, 1902 ;  Lasher  v.  Press  Co.,  203  Pa.  313, 1902 ;  Hunter  v.  Bilheimer, 
22  Pa.  Super.  622,  1903;  Fidelity  Co.  v.  Harder,  212  Pa.  96,  1905; 
Miller  v.  Piatt,  33  Pa.  Super.  547,  1907;  Pratt 's  Est.,  35  Pa.  Super. 
110,  1907;  Campbell's  Est.,  39  Pa.  Super.  138,  1909;   (i)  or  weight 

335 


REVIEW  ON  APPEAL. 


§228  (18)  (i)-(m)  Evidence— Findings  [Chap.  15, 

of  evidence:  Steinmeyer  v.  Siebert,  190  Pa.  471,  1899;  Googe  v. 
Gaskill,  18  Pa.  Super.  39,  1901;  Hale  Mfg.  Co.  v.  Norcross,  199  Pa. 
283, 1901;  Laning  v.  Darling,  209  Pa.  254,  1904;  (j)  general  rule  being 
that  such  findings  will  not  be  questioned  where  there  is  evidence  to 
support  them:  Com.  v.  Beech  Creek  R.  R.,  188  Pa.  203,  1898;  Com.  v. 
Ontario  Ry.,  188  Pa.  205,  1898;  Milton  Overseers  v.  Township,  9  Pa. 
Super.  204,  1898;  Jones  v.  Harvey,  9  Pa.  Super.  326,  1899;  Fitzsim- 
mons  v.  Robb,  193  Pa.  518,  1899;  Goggins  v.  Risley,  13  Pa.  Super. 
316,  1900;  (k)  above  principles  apply  to  findings  of  orphans'  court: 
Ake's  Ap.,  21  Pa.  320,  1854;  Harding 's  Est.,  24  Pa.  189,  1855;  Gib- 
son's Ap.,  25  Pa.  191,  1855;  Glentworth's  Ap.,  38  L.  I.  342,  1881; 
Sheehan's  Est.,  139  Pa.  168,  1891;  Murphy's  Est.,  21  Pa.  Super.  384, 
.1902;  Eslen's  Est.,  211  Pa.  215,  1905;  Gallagher's  Est.,  218  Pa.  609, 
1907;  Furbush's  Est.,  220  Pa.  166,  1908;  McCahan's  Est.,  221  Pa.  186, 
1908;  Campbell's  Est.,  39  Pa.  Super.  148,  1909;  Hirsh's  Est.,  41  Pa. 
Super.  367,  1910;  Fuller's  Est.,  41  Pa.  Super.  417,  1910;  DeHaven's 
Est.,  41  Pa.  Super.  382,  1910;  Freeman's  Est.,  227  Pa.  154,  1910;  Her- 
mann's Est.,  226  Pa.  543,  1910;  Puterbaugh's  Est.,  44  Pa.  Super.  102, 
1910;  McNulty's  Est.,  230  Pa.  387,  1911;  Rorabaugh's  Est.,  229  Pa. 
377,  1911;  see  (q),  this  note,  and  §229;  (1)  especially  where 
confirmed  by  court  in  bane:  Coulston's  Est.,  161  Pa.  151,  1894; 
Hortz's  Est.,  26  Pa.  Super.  489,  1904;  McArdle's  Est.,  28  Pa.  Super. 
106,  1905;  Moore's  Est.,  211  Pa.  338,  1905;  Pratt 's  Est.,  35  Pa. 
Super.  110,  1908;  Campbell's  Est.,  39  Pa.  Super.  188,  1909; 
Harris's  Est.,  43  Pa.  Super.  540,  1910;  (m)  the  findings  of  a 
court  of  equity:  Church  Co.  v.  Guernsey.  190  Pa.  284,  1899; 
Fitzsimmons  v.  Robb,  193  Pa.  518,  1899;  Goggins  v.  Risley,  13  Pa. 
Super.  316,  1900;  Bannon  v.  Bank,  14  Pa.  Super.  566,  1900;  Greena- 
walt  v.  Dixon,  194  Pa.  363,  1900;  Eisaman  v.  Eisaman,  201  Pa.  11, 
1901 ;  Dilworth  v.  Kennedy,  201  Pa.  388,  1902 ;  Wolf  v.  Christman,  202 
Pa.  475,  1902;  Pennsylvania  Co.  v.  R.  R.,  204  Pa.  356,  1903;  O'Brien 
v.  Collins,  205  Pa.  651, 1903;  Kelly  v.  Shay,  (No.  2)  206  Pa.  215,  1903; 
Watkins  v.  Hughes,  206  Pa.  526,  1903;  Ridgway's  Account,  206  Pa. 
587,  1903;  Lyons  v.  Lyons,  207  Pa.  13,  1903;  Obney  v.  Obney,  26  Pa. 
Super.  116,  1904;  Byers  v.  Byers,  208  Pa.  23,  1904;  Gundaker  v. 
Ehrgott,  209  Pa.  284,  1904;  First  Nat.  Bank  v.  Coal  Co.,  210  Pa.  76, 
1904;  Jones  v.  Weir,  217  Pa.  321,  1907;  Gay  v.  Chambers,  37  Pa. 
Super.  41,  1908;  Forsyth  v.  Trust  Co.,  220  Pa.  60,  1908;  Hohenstein  v. 
Perelstine,  37  Pa.  Super.  540,  1908;  Childs  v.  Adams,  43  Pa.  Super. 

336 


REVIEW  ON  APPEAL. 


§§228-31]  Evidence — Findings  §  228  (18)  (m)-(q) 

239,  1910;  Luther  v.  Luther,  226  Pa.  144,  1910;  Sears  v.  Trust  Co., 
228  Pa.  126,  1910;  Myers  v.  Ritter,  41  Pa.  Super.  590,  1910;  Citizens' 
Elec.  Co.  v.  Boom  Co.,  227  Pa.  449,  1910 ;  Meyers  v.  Coal  Co.,  228  Pa. 
444,  1910;  Bierly  v.  Sever,  228  Pa.  289,  1910;  Krings  v.  Krings,  43  Pa. 
Super.  590,  1910;  Yerger  v.  Hunn,  231  Pa  245,  1911;  (n)  or  of  ref- 
eree in  equity  suit:  Old  Colony  Tr.  Co.  v.  Transit  Co.,  192  Pa.  596, 
1899;  Wolf  v.  Augustine,  197  Pa.  367,  1900;  Taylor  v.  Folz,  24  Pa. 
Super.  1,  1903;  Fenn  v.  McCarrell,  208  Pa.  615,  1904;  McGrain  v. 
Hilton,  221  Pa.  568,  1908;  Speer  v.  Huidekoper,  221  Pa.  448,  1908; 
Guarantee  Trust  Co.  v.  Stover,  17  Dist.  684,  1908;  (o)  findings  by  the 
court  of  quarter  sessions:  Com.  v.  Church,  17  Pa.  Super.  39,  1901; 
Com.  v.  Craig,  19  Pa.  Super.  81,  1902;  Welsh's  Case,  22  Pa.  Super. 
392,  1903;  (p)  findings  in  proceedings  under  Poor  Laws  of  March  16, 
1868,  P.  L.  46,  3  Purd.  3574,  pi.  82:  Spring  Twp.  Overseers 
v.  Overseers,  1  Pa.  Super.  383,  1895;  Christy's  Lunacy,  2  Pa.  Super. 
259,  1896;  Elderton  Overseers  v.  Overseers,  2  Pa.  Super.  397,  1896; 
Edenburg  Overseers  v.  Overseers,  5  Pa.  Super.  516,  1897;  Perry  Twp. 
Overseers  v.  Overseers,  8  Pa.  Super.  640,  1898;  Com.  v.  Darr,  11  Pa. 
Super.  74,  1899;  see  §85;  (q)  findings  of  fact  by  auditors,  and  especi- 
ally when  such  findings  are  confirmed  by  lower  court :  Ake  's  Ap., 
21  Pa.  320,  1853;  Harding 's  Est.,  24  Pa.  189,  1855;  Bull's  Ap.,  24 
Pa.  286, 1855;  Mellon 's  Ap.,  32  Pa.  121, 1858;  Singmaster's  Ap.,  86  Pa. 
169,  1877;  Ready's  Ap.,  99  Pa.  9,  1881;  Jacob's  Ap.,  107  Pa.  137, 
1884;  Coxe's  Ap.,  120  Pa.  98,  1888;  Stone's  Ap.,  23  W.  N.  C.  283, 
1888;  Harbinson's  Est.,  145  Pa.  456,  1897;  Boffenmyer's  Est.,  150  Pa. 
540,  1892;  Baird  v.  Ford,  152  Pa.  637,  1893;  Becker  v.  Yeager,  1  Pa. 
Super.  107,  1895;  Kedward  v.  Campbell,  166  Pa.  365,  1895;  McCor- 
mick  v.  McGonigal,  4  Pa.  Super.  408,  1897;  Seibert's  Est.,  4  Pa.  Super. 
514,  1897;  Lowry's  Est.,  6  Pa.  Super.  143,  1897;  Emanuel's  Est.,  13 
Pa.  Super.  43,  1900;  Wendt's  Est.,  14  Pa.  Super.  644,  1900;  Platt-Bar- 
ber  Co.  v.  Groves,  193  Pa.  475,  1899;  Shimp's  Est.,  197  Pa.  128,  1900; 
Betz's  Est.,  15  Pa.  Super.  563,  1901;  Walker  v.  Edmonds,  197  Pa.  644, 
1901;  Herrington's  Est.,  17  Pa.  Super.  530,  1901;  Rigby's  Est.,  18  Pa. 
Super.  5,  1901;  Coleman's  Est.,  200  Pa.  29,  1901;  Dalley's  Est.,  200 
Pa.  140,  1901;  Kern's  Est.,  18  Pa.  Super.  506,  1902;  Fague's  Est.,  19 
Pa.  Super.  638,  1902;  Young's  Est.,  204  Pa.  32,  1902;  Hayes's  Est., 
23  Pa.  Super.  570,  1903 ;  Rossbach  v.  Beebe,  205  Pa.  652,  1903 ;  Union 
Tract.  Co.  v.  Grubb,  24  Pa.  Super.  345,  1904;  Powel's  Est.,  208  Pa. 
505,  1904;  McPharren's  Est.,  212  Pa.  425,  1905;  Taylor's  Est.,  35  Pa. 

337 

22 


REVIEW  ON  APPEAL. 


§228  (18)  (q)-(x)  Evidence — Findings  [Chap.  15, 

Super.  452,  1908;  Blaney's  Est.,  37  Pa.  Super.  76,  1908;  Barnes's  Est., 
221  Pa.  399,  1908;  Leonard's  Est.,  226  Pa.  277,  1910;  Gibson's  Est., 
228  Pa.  409;  see  (k),  this  note;  (r)  unless  the  auditor  has  made  no 
definite  findings:  Hawley  v.  Griffith,  187  Pa.  306,  1898;  (s)  findings  of 
arbitrators  and  reierees :  Harker  v.  Elliot,  7  S.  &  R.  284,  1821 ;  Betz  v. 
Delbert,  16  W.  N.  C.  360,  1885;  Ellison  v.  Hosie,  147  Pa.  336,  1892; 
Ridge  Ave.  Ry.  v.  Phila.,  181  Pa.  592,  1897;  Bulkley  v.  Wood,  4  Pa. 
Super.  391, 1897 ;  Chester  v.  Mclntyre,  13  Pa.  Super.  545, 1900 ;  Snyder 
v.  Karney,  198  Pa.  356,  1901 ;  Plymouth  Co.  v.  Wood  Co.,  203  Pa.  206, 
1902;  Taylor  v.  Folz,  24  Pa.  Super.  1,  1903;  Rossbach  v.  Beebe,  205 
Pa.  652,  1903;  Oakley  v.  Borough,  25  Pa.  Super.  425,  1904;  Lancaster 
v.  Flowers,  208  Pa.  199,  1904;  Bradley  v.  Gaghan,  208  Pa.  511,  1904; 
Findlay  v.  Phila.,  217  Pa.  330,  1907;  Speer  v.  Huidekoper,  221  Pa.  568, 
1908;  McGraw  v.  Hilton,  221  Pa.  568,  1908;  (t)  findings  of  referee 
under  Act  of  May  14,  1874,  P.  L.  166,  such  findings  having  effect  of 
verdict  of  jury:  Com.  v.  Mitchell,  80  Pa.  57,  1875;  Jamison  v.  Collins, 
83  Pa.  359,  1877;  Lee  v.  Keys,  88  Pa.  175,  1878;  Brown  v.  Dempsey, 
95  Pa.  243,  1880 ;  Camden,  etc.  Ferry  Co.  v.  Managhan,  10  W.  N.  C.  46, 
1881;  Bradlee  v.  Whitney,  108  Pa.  362,  1885;  Brown  v.  Boom  Co., 
109  Pa.  57,  1885;  Bidwell  v.  Pittsburg  Ry.,  114  Pa.  535,  1886;  Gonser 
v.  Smith,  115  Pa.  452,  1886 ;  Southern  Md.  Ry.  v.  Moyer,  125  Pa.  506, 
1889;  Com.  v.  Hulings,  129  Pa.  317,  1889;  Com.  v.  Westinghouse  Mfg. 
Co.,  151  Pa.  265,  1892;  Leonard  v.  Smith,  162  Pa.  284,  1894;  Fuller  v. 
Weaver,  175  Pa.  182,  1896;  McGinn  v.  Benner,  180  Pa.  396,  1897; 
Bruch  v.  Phila.,  181  Pa.  588,  1897;  McMillin  v.  McMillin,  183  Pa.  91, 
1897;  Grauel  v.  Wolfe,  185  Pa.  83,  1898;  Schwab  v.  Bickel,  11  Pa. 
Super.  312,  1899 ;  Fell  v.  Betz,  22  Pa.  Super.  418,  1903 ;  see  §93 ;  (u) 
the  above  rules  are  especially  applicable  where  findings  have  been  ap- 
proved by  lower  court :  Chambers  v.  Chatley,  15  Pa.  Super.  540,  1901 ; 
De  La  Vergne,  etc.,  Co.  v.  Kolischer,  214  Pa.  400,  1906;  Dickey  v. 
Norris,  216  Pa.  184, 1907;  Findlay  v.  Phila.,  217  Pa.  330, 1907;  Thomp- 
son v.  Prettyman,  231  Pa.  1, 1911 ;  Kemmerer  Iron  Co.  v.  Bittenbender, 
231  Pa.  154,  1911;  (v)  and  where  findings  are  not  all  before  appellate 
court:  Borda  v.  R.  R.,  141  Pa.  484,  1891;  (w)  where  clear  error  is 
shown,  submission  under  Act  June  16,  1836,  P.  L.  717,  §51,  above,  will 
be  referred  back  to  referee :  Gunn  v.  Bowers,  126  Pa.  552,  1889 ;  Klip- 
stein  v.  Whitesides,  30  Pa.  Super.  35,  1906;  (x)  findings  of  referee 
under  Act  April  22, 1874,  P.  L.  109,  3  Purd.  3658,  pi.  42,  have  also  effect 
of  verdict  of  jury  (see  (t),  this  note) :  (y)  in  proceedings  under  said 

338 


REVIEW  ON  APPEAL. 


§§228-31]  Evidence— Findings  §  228  (18)  (x)-(h2) 

act,  where  case  has  been  tried  before  court  and  error  is  alleged  in  re- 
jecting testimony,  offers  will  be  treated  as  stating  facts :  Com.  v.  Phila. 
County,  157  Pa.  531,  1893;  (z)  findings  of  master  are  not  conclusive 
unless  clear  error  be  shown:  Logue's  Ap.,  104  Pa.  136,  1883;  Cake's 
Ap.,  110  Pa.  65,  1885;  Bugbee's  Ap.,  110  Pa.  331,  1885;  Martinsburg 
Bank  v.  Telephone  Co.,  150  Pa.  36,  1892;  Krumbhaar  v.  Griffiths,  151 
Pa.  223,  1892;  Warner  v.  Hare,  154  Pa.  548,  1893;  Riverton  Ferry  Co. 
v.  Bridge  Co.,  1  Pa.  Super.  587,  1895;  (a2)  and  where  lower  court  re- 
verses master's  findings  without  giving  reasons,  and  weight  of  tes- 
timony is  in  favor  of  findings,  lower  court  will  be  reversed :  Williams 
v.  Church,  193  Pa.  120,  1899 ;  (b2)  findings  of  master  in  divorce  pro- 
ceedings where  there  has  been  no  jury  trial,  are  entitled  to  great 
weight,  although  appellate  court  will  in  such  cases  carefully  scrutinize 
the  evidence :  Middleton  v.  Middleton,  187  Pa.  612,  1898 ;  Mendenhall 
v.  Mendenhall,  12  Pa.  Super.  290, 1899;  Hull  v.  Hull,  14  Pa.  Super.  520, 
1900 ;  Smith  v.  Smith,  15  Pa.  Super.  366,  1901 ;  Faunce  v.  Faunce,  29 
Pa.  Super.  220, 1902;  Rishel  v.  Rishel,  24  Pa.  Super.  303,  1904;  Schulze 
v.  Schulze,  33  Pa.  Super.  325, 1907;  Penny  v.  Penny,  34  Pa.  Super.  88, 
1907;  King  v.  King,  36  Pa.  Super.  33,  1908;  see  §61,  note  (2);  (c2) 
and  where  report  of  two  masters  are  conflicting  and  lower  court  makes 
no  clear  findings  of  facts,  appellate  court  will  reverse  and  refer  case  to 
new  master:  Eckels  v.  Stuart,  209  Pa.  285,  1904;  (d2)  but  mere  fact 
that  lower  court  disapproved  report  of  master  in  divorce  and  dismissed 
libel  without  filing  opinion  is  not  reversible  error:  Carey  v.  Carey,  25 
Pa.  Super.  223,  1904;  (e2)  where,  after  report  has  been  examined  and 
referred  back  to  master  for  additional  testimony,  part  of  testimony  of 
first  report  has  been  lost,  but  decree  of  divorce  is  subsequently  entered 
without  compelling  libellant  to  supply  lost  testimony,  case  will  be 
reversed:  Rishel  v.  Rishel,  24  Pa.  Super.  303,  1904;  (f2)  trial  judge  in 
equity  case  should  set  out  his  findings  in  separate  and  numbered  para- 
graphs: Schmidt  v.  Baizley,  184  Pa.  527,  1898;  Pittsburg  Stove  Co.  v. 
Penna.  Co.,  208  Pa.  37, 1904;  Gaynor  v.  Quinn,  212  Pa.  362, 1905;  Hast- 
ings Water  Co.  v.  Hastings  Boro.,  216  Pa.  178,  1907;  (g2)  and 
must  answer  each  request  for  findings  by  adopting,  affirming,  qualify- 
ing or  denying  it:  Hoyt  v.  Canal  Co.,  203  Pa.  509,  1902;  Lehigh  Coal 
Co.  v.  Everhart,  206  Pa.  118,  1903;  Pittsburg  Stove  Co.  v.  Penna  Co., 
208  Pa.  37,  1904;  Gaynor  v.  Quinn,  212  Pa.  362,  1905;  (h2)  decree 
will  not  be  reversed  where  court  made  no  findings  on  which  it  was 
based:  Jones  v.  Weir,  213  Pa.  135,  1905;  (12)  but  appellate  court  is 

339 


REVIEW  ON  APPEAL. 


§228  (18)  (i2)-(19)  Evidence — Findings  [Chap.  15, 

not  bound  by  finding  which  is  merely  an  inference:  Beale  v.  Kline, 

183  Pa.  149,  1897;  (J2)  findings  may  by  agreement  be  based  on  evi- 
dence taken  in  action  at  law  between  same  parties  and  involving 
same  subject  matter:  Andrews  v.  Coal  Co.,  202  Pa.  639,  1902;   (k2) 
but  not  where  parties  were  not  the  same:  Gribbel  v.  Brown,  202  Pa. 
10,  1902;  (12)  admission  of  incompetent  evidence  is  no  cause  for  re- 
versal unless  it  appears  auditor  was  influenced  by  it :  Harbinson  's  Est., 
145  Pa.  456,  1891;  Countryman's  Est.,  151  Pa.  577,  1892;  (m2)  that 
a  different  conclusion  might  have  been  reached  is  not  cause  for  re- 
versal :  Marr  v.  Marr,  6  Sad.  138, 1887 ;  Gibbons  v.  Hook  &  Ladder  Co., 

184  Pa.  608,  1898;  Bailey's  Est.,  187  Pa.  31,  1898;  Taylor  v.  Folz, 
24  Pa.  Super.  1,  1903;   (n2)  evidence  must  in  all  cases  be  properly 
brought  on  record  before  appellate  court:  Carpenter's  Case,  4  Pa. 
222,  1846;  D'Arros's  Ap.,  89  Pa.  51,  1879;  Owen's  Ap.,  140  Pa.  565, 
1891;  Borda  v.  R.  R.,  141  Pa.  484,  1891:  Fleer  v.  Reagan,  24  Pa. 
Super.  170,  1903;   (see  also  note   (17)    (d),  above);    (o2)   if  award 
be  regular  on  its  face,  proceedings  before  referee  will  not  be  re- 
viewed in   appellate  court  in   absence  of    exceptions  duly  taken  in 
court  below :  Browning  v.  McManus,  1  Whar.  177,  1835 ;  Sands  v.  Rols- 
house,  3  Pa.  456,  1846;  Berg  v.  Moore,  7  Pa.  94,  1847;  Vankirk  v.  Mc- 
Kee,  9  Pa.  100,  1848,  Rogers  v.  Playford,  12  Pa.  181,  1849;  Taggart  v. 
McGinn,  14  Pa.  155,  1850;  Bemus  v.  Clark,  29  Pa.  251,  1857;  Wilcox 
v.  Payne,  88  Pa.  154,  1878;  (p2)  and  it  must  appear  on  face  of  record 
that  there  is  no  evidence  to  sustain  findings:  Phila.  Co.  v.  United  Gas 
Imp.  Co.,  180  Pa.  235, 1897;  Fell  v.  Betz,  22  Pa.  Super.  418, 1903;  (q2) 
appeal  taken  before  exceptions  to  findings  have  been  filed  will  be 
quashed  unless  order  to  enter  judgment  is  so  drawn  as  to  raise  pre- 
sumption that  court  intended  to  deny  right  to  file  exceptions:  Miller 
v.  Cambria  County,  25  Pa.  Super.  591,  1904;   (r2)  where  evidence  is 
properly  made  part  of  record,  appellate  court  will  not  merely  in- 
spect it,  as  on  certiorari,  but  will  review  judicial  action  of  lower 
court:  Pocono  Pines  Assembly  v.  County,  29  Pa.  Super.  36,  1905;  (s2) 
statements  of  fact  will  be  taken  as  true  where  all  evidence  is  not 
printed :  Hyndman  v.  Hogsett,  111  Pa.  643,  1886 ;  (t2)  but  no  facts  not 
found  will  be  inferred :  Sweigard  v.  Wilson,  106  Pa.  207,  1884. 

(19)  Charge  of  Court — Omission  to  Charge  in  Particular  Manner 
in  Absence  of  Requests.  Where  no  particular  instructions  are  asked 
for,  the  appellate  court  will  review  the  charge  as  a  whole  and  not 
sentences  or  paragraphs  disconnected  from  the  context,  and  if  the 

340 


REVIEW  ON  APPEAL. 


§§228-31]  Charge— Absence  of  Requests  §228  (19)  (a) 

general  effect  is  a  fair  presentation  of  the  case  under  the  evidence, 
there  will  be  no  reversal  on  the  ground  that  it  contained  language 
which  was  prejudicial  and  misleading.  That  the  trial  judge  com- 
mented on  the  testimony  and  expressed  his  opinion  on  the  facts, 
credibility  of  witnesses  or  weight  of  the  evidence,  is  not  error,  so  long 
as  he  leaves  the  jury  free  to  decide  for  themselves. 

But  where  the  tendency  of  the  charge  as  a  whole  is  to  prejudice 
one  side,  and  is  not,  in  expression  and  tone,  a  fair,  unbiased  and 
judicial  presentation  of  the  case,  the  appellate  court  will  reverse. 

The  principles  governing  the  review  of  a  case  by  reason  of  alleged 
errors  in  the  charge,  are  illustrated  in  the  following  notes : 

(a)  Where  there  are  no  specific  requests  for  instruction,  failure  of 
trial  judge  to  charge  in  any  particular  manner  is  not  error:  Lilly  v. 
Paschal,  2  S.  &  R.  394,  1816;  Poorman  v.  Smith,  2  S.  & 
R.  464,  1816;  Kean  v.  McLaughlin,  2  S.  &  R.  469,  1816; 
Carothers  v.  Dunning,  3  S.  &  R.  373,  1817;  Overfield  v.  Christie, 
7.  S.  &  R.  173,  1821;  Barton  v.  Glasgo,  12  S.  &  R.  149,  1824;  Rahn 
v.  McElrath,  6  Watts  151,  1837;  Snevely  v.  Jones,  9  Watts 
433,  1840;  Dennis  v.  Alexander,  3  Pa.  50,  1846;  Crail  v.  Crail, 
6  Pa.  480,  1847;  Burns  v.  Sutherland,  7  Pa.  103,  1847;  Lea  v. 
Hopkins,  7  Pa.  492,  1848;  Holliday  v.  Rheem,  18  Pa.  465,  1852;  Deal 
v.  Bogue,  20  Pa.  228,  1853;  Thomas  v.  Thomas,  21  Pa.  315,  1853; 
Wertz  v.  May,  21  Pa.  274,  1853;  Cattison  v.  Cattison,  22  Pa.  275, 
1853;  Huber  v.  Wilson,  23  Pa.  178,  1854;  Raush  v.  Miller,  24  Pa.  277, 
1855;  Storch  v.  Carr,  28  Pa.  135,  1857;  Weamer  v.  Juart,  29  Pa.  257, 
1857;  McGrew  v.  Lippincott,  6  P.  L.  J.  67,  1858;  Reeves  v.  R.  R.,  30 
Pa.  454,  1858 ;  Newman  v.  Edwards,  34  Pa.  32,  1859 ;  Dean  v.  Herrold, 
37  Pa.  150, 1860;  Caldwell  v.  Hollder,  40  Pa.  160, 1861;  Mullen  v.  Wil- 
son, 44  Pa.  413,  1863;  Gheen  v.  Heyburn,  1  Walk.  148,  1864;  Stewart 
v.  Alcorn,  2  W.  N.  C.  401,  1869;  Torrance  v.  Torrance,  53  Pa.  505, 
1866;  Burkholder  v.  Stahl,  58  Pa.  371,  1868;  Davis  v.  Bigler,  62  Pa. 
242,  1869;  Cooper  v.  Altimus,  62  Pa.  486,  1869;  Pitts,  etc.,  R.  R.  v. 
Com.,  66  Pa.  73,  1870;  Burlington,  etc.,  Ferry  Co.  v.  Steamboat  Co., 
2  W.  N  C.  453, 1873;  Am.  Life  Ins.  Co.  v.  Isett,  74  Pa.  176, 1873;  Penn, 
etc.,  Ins.  Co.  v.  Snyder,  3  W.  N.  C.  269,  1875;  Dawson  v.  Robinson,  3 
W.  N.  C.  449,  1876;  Zell  v.  Com.,  94  Pa.  258,  1880;  Fox  v.  Fox,  96  Pa. 
60,  1880 ;  Menger  v.  Township,  1  Penny.  179,  1881 ;  Sayre  v.  Schroeder, 
2  Penny,  79,  1882;  Ott  v.  Oyer,  106  Pa.  6,  1884;  Lebanon  Ins.  Co.  v. 
Losch,  109  Pa.  100, 1885;  Phila.  &  Read.  R.  R.  Co.  v.  Getz,  113  Pa.  214, 

341 


REVIEW  ON  APPEAL. 


§228  (19)  (a)  Charge— Absence  of  Requests  [Chap.  15, 

1886;  Thomas  v.  Loose,  114  Pa.  35, 1886;  Mitchell  v.  Mitchell,  18  W.  N. 
C.  439,  1886;  Frothingham  v.  Powder  Co.,  8  Sad.  28,  1886;  Payne  v. 
Noon,  5  Sad.  274,  1887;  Kurtz  v.  Haines,  2  Mona.  328,  1888;  Schmidt 
v.  McGill,  120  Pa.  405,  1888;  Stuckslager  v.  Neel,  123,  Pa.  53,  1888; 
Hower  v.  Taggart,  2  Mona.  582,  1889;  Grantz  v.  Price,  130  Pa.  415, 
1889;  Readdy  v.  Shamokin,  137  Pa.  98, 1890;  Com.  v.  Doughty,  139  Pa. 
383,  1891;  Serf  ass  v.  Dreisbach,  141  Pa.  142,  1891;  Wray  v.  Spence, 
145  Pa.  399, 1892;  Borham  v.  Davis,  146  Pa.  72,  1892;  Brookville  Boro. 
v.  Arthurs,  152  Pa.  334,  1892;  Com.  v.  Zappe,  153  Pa.  498,  1893;  Com. 
v.  Buceieri,  153  Pa.  535,  1893;  Winther  v.  Railway,  139  Pa.  628,  1894; 
Brinser  v.  Longnecker,  169  Pa.  51,  1895;  Patterson  Hardware  Co.  v. 
Blaisdell,  169  Pa.  636,  1895;  Lancaster  Plate  Co.  v.  Ins.  Co.,  170  Pa. 
151,  1895;  Com.  v.  Peach,  170  Pa.  173,  1895;  Campbell  v.  Asso.,  172 
Pa.  561,  1895;  Connor  v.  Traction  Co.,  173  Pa.  602,  1896;  Curtain  v. 
Gephart,  175  Pa.  417,  1896;  Com.  v.  Boschino,  176  Pa.  103,  1896; 
Baker  v.  Hagey,  177  Pa.  128, 1896;  Lauer  v.  Yetzer,  3  Pa.  Super.  461, 
1897;  Light  v.  Railway  Co.,  4  Pa.  Super.  427,  1897;  Crawford  v.  Wit- 
tish,  4  Pa.  Super.  585,  1897;  Walton  v.  Caldwell,  5  Pa.  Super.  143, 
1897;  O'Toole  v.  Publishing  Co.,  179  Pa.  271,  1897;  Leary  v.  Traction 
Co.,  180  Pa.  136,  1897;  Earle  v.  Arbogast,  180  Pa.  409,  1897;  Kehoe 
v.  Traction  Co.,  187  Pa.  474,  1898 ;  Taylor  v.  Sattler,  6  Pa.  Super.  229, 
1898;  Moore  v.  Publishing  Co.,  8  Pa.  Super.  152,  1898;  Criland  v. 
Stevens,  9  Pa.  Super.  41,  1898;  Dougherty  v.  Loebelenz,  9  Pa.  Super. 
344,  1899;  Fry  v.  Flick,  10  Pa.  Super.  362,  1899;  Wetherill  v.  Erwin, 

12  Pa.  Super.  259,  1899 ;  Com.  v.  Winkelman,  12  Pa.  Super.  497,  1900 ; 
Mineral  R.  R.  Co.  v.  Auten,  188  Pa.  568,  1899 ;  Com.  v.  Keller,  191  Pa. 
122,  1899;  Com.  v.  Brubaker,  13  Pa.  Super.  14,  1900;  Machen  v.  Ry., 

13  Pa.  Super.  642,  1900;  White  v.  Black,  14  Pa.  Super.  459,  1900; 
Hamilton  v.  Railroad  Co.,  194  Pa.  1,  1899;  Worden  v.  Connell,  196 
Pa.  286,  1900;  Prindle  v.  Kountz,  15  Pa.  Super.  258,  1901;  Zugsmith 
v.  Rosenblatt,  15  Pa.  Super.  296,  1901;  Blank  v.  Barnhart,  17  Pa. 
Super.  214,  1901 ;  Jones  v.  Matheis,  17  Pa.  Super.  220,  1901 ;  Hayden- 
ville  Mining  Co.  v.  Steffler,  17  Pa.  Super.  609,  1901 ;  Bailey  v.  Board  of 
Pub.  200  Pa.  406,  1901 ;  Lewin  v.  Pauli,  19  Pa.  Super.  447,  1902 ;  Com. 
v.  Winkelman,  12  Pa.  Super.  497,  1902;  Edwards  v.  Gimbel,  202  Pa. 
30,  1902;  Brown  v.  Montgomery,  21  Pa.  Super.  262,  1902;  Mitchell  v. 
Jodon,  22  Pa.  Super.  304,  1903;  O'Donnell  v.  Gaffney,  22  Pa.  Super. 
316,  1903 ;  Karl  v.  Juniata  Co.,  206  Pa.  633, 1903 ;  Stewart  v.  Company, 
207  Pa.  220,  1903 ;  Ephrata  Water  Co.  v.  Borough,  24  Pa.  Super.  353, 

342 


REVIEW  ON  APPEAL. 


§§  228-3 1  ]  Charge — Absence  of  Requests          §  228  ( 19 )  ( a )  -  ( i ) 

1904;  Kaufman  v.  Railroad,  210  Pa.  440,  1904 j  Carpenter  v.  Lan- 
caster, 22  Lane.  L.  R.  33,  1905;  English  v.  Murtland,  214  Pa.  325, 
1906;  Kalin  v.  Wehrle,  36  Pa.  Super.  305,  1908;  Weiss  v.  Swift,  36 
Pa.  Super.  376,  1908;  Com.  v.  Wilkinbsurg,  37  Pa.  Super.  160,  1908; 
Spring  City  Brick  Co.  v.  Mfg.  Co.,  39  Pa.  Super.  7, 1909 ;  Com.  v.  Paci- 
to,  229  Pa.  328,  1911 ;  Spencer  v.  Conrad,  44  Pa,  Super.  489,  1911 ;  see 
also  note  (20)  (a),  below;  (b)  especially  where  party  complaining  has 
not  been  prejudiced  by  the  omission:  Deal  v.  Bogue,  20  Pa.  228,  1853; 
Wood  v.  Figard,  28  Pa.  403,  1857;  Cathcart  v.  Com.,  37  Pa.  108,  1860; 
Heilbruner  v.  Wayte,  51  Pa.  259,  1865;  Bentley  v.  Cranmer,  137  Pa. 
244,  1890;  (c)  this  rule  has  been  applied  even  in  capital  cases: 
Brown  v.  Com.,  76  Pa.  319,  1874;  Com.  v.  Boschino,  176  Pa.  103,  1896; 
but  see  contra  Meyers  v.  Com.,  83  Pa.  131,  1876;  (d)  but  it  will  not  be 
applied  where  material  questions  are  so  inadequately  presented  as  to 
be  calculated  to  mislead  jury:  Taylor  v.  Sattler,  41  W.  N.  C.  146, 1897; 
McNeile  v.  Cridland,  6  Pa.  Super.  428,  1898;  Blank  v.  Barnhart,  17 
Pa.  Super.  214, 1901 ;  Jones  v.  Matheis,  17  Pa.  Super.  220,  1901 ;  Hay- 
denville  Mining  Co.  v.  Steffler,  17  Pa.  Super.  609,  1901;  (e)  or  where 
trial  judge  overlooks  principal  question  in  case:  Rothschilds  v.  Mc- 
Laughlin,  6  Pa.  Super.  347,  1898;  (f)  the  most  that  can  be  required 
of  judge,  in  absence  of  particular  requests  for  instructions,  is  that  he 
state  contention  of  parties  as  to  facts  established  by  testimony  and 
its  effect,  and  leave  question  to  jury:  Com.  v.  Winkelman,  12  Pa. 
Super.  497,  1900;  see  note  (20)  (a),  below;  (g)  omission  to  refer  to 
all  the  evidence  is  not  error:  Sample  v.  Robb,  16  Pa.  305,  1851; 
Light  v.  Railway  Co.,  4  Pa.  Super.  427,  1897;  (h)  it  is  largely  a  mat- 
ter of  discretion  with  him  as  to  how  far  he  will  go  into  detail  in  dis- 
cussing evidence :  Borham  v.  Davis,  146  Pa.  72,  1892 ;  Fowler  v.  Smith, 
153  Pa.  639,  1893;  Ensminger  v.  Hess,  192  Pa.  432,  1899;  Blank  v. 
Barnhart,  17  Pa.  Super.  214,  1901 ;  Thrall  v.  Wilson,  17  Pa.  Super.  376, 
1901 ;  Com.  v.  Wertheimer,  23  Pa.  Super.  192, 1903 ;  Com.  v.  Penrose,  27 
Pa.  Super.  101,  1904;  (i)  general  rule  is  that  where  charge  fails  to 
give  to  jury  a  clear  statement  of  the  case  and  law  applicable  thereto, 
it  is  ground  for  reversal:  Tietz  v.  Traction  Co.,  169  Pa.  516,  1895; 
Richards  v.  Willard,  176  Pa.  181,  1896;  Hudson  v.  Watson,  2  Pa. 
Super.  422,  1896;  Earle  v.  Arbogast,  180  Pa.  409,  1897;  McCord  v. 
Whitaker,  8  Pa.  Super.  277,  1898;  Stuart  v.  Line,  11  Pa.  Super.  345, 
1899;  Ensminger  v.  Hess,  192  Pa.  432,  1900;  Clark  v.  Traction  Co., 
210  Pa.  636,  1905;  Moudy  Mfg.  Co.  v.  R.  R.,  212  Pa.  156,  1905;  see 

343 


REVIEW  ON  APPEAL. 


§228  (19)  (j)-(20)  (a)     Charge— Absence  of  Requests  [Chap.  15, 

also  cases  under  (d)  this  note,  and  note  (20)  (b) ;  (j)  for  example, 
a  charge  is  inadequate  which  does  not  inform  jury  in  negligence  case 
that  question  of  defendant's  negligence  is  for  their  consideration  and 
does  not  instruct  them,  as  to  what  would  constitute  negligence  in  the 
case  before  them:  Kelchner  v.  Borough,  209  Pa.  412,  1904;  (k)  or 
which  fails  to  explain  meaning  of  negligence  or  contributory  negli- 
gence in  view  of  testimony:  New  York,  etc.,  R.  R.  v.  Enches,  127  Pa. 
316,  1889;  Kelchner  v.  Boro.,  209  Pa.  412,  1904;  (1)  or  to  charge  as 
to  defendant's  duty  in  negligence  case:  Cooley  v.  Traction  Co.,  189 
Pa.  563,  1899;  Hays  v.  R,  R.,  195  Pa.  184,  1900;  Kelchner  v.  Boro., 
209  Pa.  412,  1904;  (m)  or  which  fails  to  give  jury  proper  instruc- 
tions as  to  measure  of  damages:  Gilmore  v.  Hunt,  66  Pa.  321,  1870; 
Himes  v.  Kiehl,  154  Pa.  190,  1893;  Elk  Co.  v.  Brennan,  203  Pa.  232, 
1902;  (n)  or  to  instruct  them  as  to  nature  and  effect  of  legal  fraud, 
where  case  involves  question  of  fraud  on  creditors :  Cadbury  v.  Nolen, 
5  Pa.  320,  1847;  (o)  or  as  to  relative  weight  and  effect  of  positive 
and  negative  testimony:  Hess  v.  R.  R.,  181  Pa.  492,  1897;  (p)  or 
which  fails  in  proper  cases  to  call  attention  to  evidence  tending  to 
discredit  witness:  Herstine  v.  R.  R.,  151  Pa.  244,  1892;  Herbert  v. 
Rainey,  162  Pa.  525,  1894;  Clark  v.  Traction  Co.,  210  Pa.  636,  1895; 
Davies  v.  Transit  Co.,  228  Pa.  176, 1910 ;  Cohen  v.  Transit  Co.,  228  Pa. 
243,  1910;  (q)  though  this  is  not  necessary  in  all  cases:  Alexander  v. 
Buckwalter,  17  Pa.  Super.  128,  1901;  (r)  appellate  court  will  not  sus- 
tain assignment  that  court  did  not  present  one  side  of  case  as  fully  as 
he  did  the  other,  where  counsel  failed  to  call  attention  of  court  to 
omission :  0  'Donnell  v.  Gaffney,  22  Pa.  Super.  316,  1903 ;  see  also  note 
(20),  below. 

(20)  —  Prejudicial,  Misleading  or  Mistaken  Charge — Considering 
Charge  as  a  Whole,  (a)  Where  no  particular  instructions  are  re- 
quested, a  charge  which  is  neither  misleading  nor  unfair  as  a  whole 
will  not  be  reversed  because  it  contains  some  misleading  statements, 
or  because  there  are  some  statements  of  unimportant  facts  which, 
standing  alone,  are  erroneous  or  unsupported  by  the  testimony.  The 
appellate  court  will  review  only  the  general  effect  of  charge,  and 
not  disconnected  sentences  or  paragraphs:  Carothers  v.  Dunning,  3 
S.  &  R.  373,  1817;  Reeves  v.  R.  R.,  30  Pa.  454,  1858;  Watts  v.  Cum- 
mins, 59  Pa.  84,  1868;  Hall  v.  Dunham,  1  W.  N.  C.  487,  1875;  Blair 
Coal  Co.  v.  Lloyd,  3  W.  N.  C.  103,  1875;  Carman  v.  Navigation  Co., 
2  W.  N.  C.  720,  1876;  Penn  Mutual  Ins.  Co.  v.  Snyder,  3  W.  N.  C. 

344 


REVIEW  ON  APPEAL. 


§§  228-31]  Charge  as  Whole  §  228  (20)  (a) 

269,  1876;  Schuylkill,  etc.,  Coal  Co.  v.  French,  81*  Pa.  366,  1876; 
Green  v.  Com.,  83  Pa.  75,  1876;  Walsh  v.  Porterneld,  87  Pa.  376,  1878; 
Spencer  v.  Colt,  89  Pa.  314,  1879;  Reese  v.  Reese,  90  Pa.  89,  1879; 
Horton  v.  Hall,  1  Penny.  159,  1881;  Erie  R.  R.  v.  Johnson,  101  Pa. 
555,  1882;  Alexander  v.  Com.,  105  Pa.  1,  1884;  Shovlin  v.  Com.,  106 
Pa.  369,  1884;  Smith  v.  Meldren,  107  Pa.  348,  1884;  Yardley  v.  Cuth- 
bertson,  108  Pa.  395,  1885;  Nassauer  v.  Ins.  Co.,  109  Pa.  507,  1885; 
Lehigh  Valley  R.  R.  Co.  v.  Brandtmaier,  113  Pa.  610,  1886;  Heffley 
v.  Poorbaugh,  7  Sad.  49,  1887;  Bedell  v.  Errett,  8  Sad.  418,  1887; 
Entwisle  v.  Carey,  22  W.  N.  C.  127,  1888;  Wood  v.  Malone,  131  Pa. 
554,  1890;  Lewis  v.  Rattigan,  138  Pa.  308,  1890;  Knapp  v.  Griffin,  140 
Pa.  604,  1891;  Rogers  v.  Davidson,  142  Pa.  436,  1891;  Com.  v.  Mc- 
Manus,  143  Pa.  64,  1891;  Jaffray  v.  Frothingham,  148  Pa.  213,  1892; 
Irvin  v.  Kutruff,  152  Pa.  609, 1893;  Houston  v.  Cook,  153  Pa.  43, 1893; 
Com.  v.  Zappe,  153  Pa.  498, 1893 ;  Com.  v.  Buccieri,  153  Pa.  535,  1893 ; 
Owens  v.  Railway,  155  Pa.  334,  1893;  Evans  v.  Evans,  155  Pa.  572, 
1893;  Half  man  v.  Ins.  Co.,  160  Pa.  202,  1894;  Com.  v.  Mika,  171  Pa. 
273, 1895 ;  Com.  v.  Bowman,  171  Pa.  448, 1895 ;  Kyle  v.  Power  Co.,  174 
Pa.  570,  1896;  Com.  v.  Goldberg,  4  Pa.  Super.  142,  1897;  Snyder  v. 
Loy,  4  Pa.  Super.  201,  1897;  Hudson  v.  Watson,  5  Pa.  Super.  456, 
1897;  Omensetter  v.  Kemper,  6  Pa.  Super.  309, 1897;  Bascom  v.  Mfg. 
Co.,  182  Pa.  427,  1897;  Sheaffer  v.  Sensenig,  182  Pa.  634,  1897;  Mc- 
Neile  v.  Cridland,  6  Pa.  Super.  428,  1898;  Heyer  v.  Piano  Co.,  6  Pa. 
Super.  504,  1898;  Studebaker  v.  Gas  Co.,  7  Pa.  Super.  641,  1898; 
Taylor  v.  Burrel,  7  Pa.  Super.  461,  1898;  McCord  v.  Whitaker,  8  Pa. 
Super.  277,  1898;  Ginder  v.  Bachman,  8  Pa.  Super.  405,  1898;  Davis 
v.  Galbraith,  184  Pa.  442,  1898;  Com.  v.  Kaiser,  184  Pa.  493,  1898; 
Turton  v.  Electric  Co.,  185  Pa.  406,  1898;  Whitaker  v.  Campbell,  187 
Pa.  113, 1898 ;  Susquehanna  Ins.  Co.  v.  Clinger,  10  Pa.  Super.  92, 1899 ; 
Craig  v.  Shippensburg,  11  Pa.  Super.  490,  1899;  Com.  v.  Winkelman, 
12  Pa.  Super.  497,  1900;  Card  v.  Township,  191  Pa.  254,  1899;  Ens- 
minger  v.  Hess,  192  Pa.  432,  1899;  Beard  v.  Heck,  13  Pa.  Super.  390, 
1900 ;  Winans  v.  Bunnell,  13  Pa.  Super.  445,  1900 ;  Ferrell  v.  Reed,  14 
Pa.  Super.  27, 1900;  White  v.  Black,  14  Pa.  Super.  459,  1900;  Com.  v. 
Morrison,  193  Pa.  613,  1900;  Hamilton  v.  R.  R.,  194  Pa.  1,  1900;  Brin- 
ton  v.  Walker,  15  Pa.  Super.  449, 1901 ;  Claflin  v.  Querns,  15  Pa.  Super. 
464,  1901 ;  Blank  v.  Barnhart,  17  Pa.  Super.  214,  1901 ;  Thrall  v.  Wil- 
son, 17  Pa.  Super.  376,  1901;  Haydenville  Mining  Co.  v.  Steffler,  17 
Pa.  Super.  609.  1901 ;  Fricker  v.  Bridge  Co.,  197  Pa.  442, 1901 ;  Com.  v. 

345 


REVIEW  ON  APPEAL. 


§228  (20)  (a)- (c)  Charge  as  Whole  [Chap.  15, 

Bubnis,  197  Pa.  542,  1901;  Gilchrist  v.  Hartley,  198  Pa.  132,  1901; 
Brown  v.  Montgomery,  21  Pa.  Super.  262,  1902;  Keep  v.  Wagner,  21 
Pa.  Super.  268,  1902;  Fitzpatrick  v.  Traction  Co.,  206  Pa.  335,  1903; 
Karl  v.  Juniata  County,  206  Pa.  633,  1903;  Fitzgerald  v.  Edison  Co., 
207  Pa.  118,  1903;  Abington  Dairy  Co.  v.  Reynolds,  24  Pa.  Super. 
632,  1904;  McCosh  v.  Myers,  25  Pa.  Super.  61,  1904;  Rider-Ericsson 
Co.  v.  Fredericks,  25  Pa.  Super.  72,  1904;  Oehmler  v.  Ry  Co.,  25  Pa. 
Super.  617, 1904;  Cox  v.  Wilson,  25  Pa.  Super.  635,  1904;  Com.  v.  Pen- 
rose,  27  Pa.  Super.  101, 1904;  Com.  v.  Razmus,  210  Pa.  609,  1905;  Com. 
v.  D'Angelo,  29  Pa.  Super.  378,  1905;  Stremme  v.  Dyer,  223  Pa.  7, 
1909;  see  also  note  (19)  (a),  above;  (b)  but  where  there  is  a  tendency 
to  mislead  in  general  tone  of  whole  charge,  appellate  court  will  re- 
verse though  no  particular  portion  is  clearly  erroneous:  Phila.  & 
Read.  R.  R.  v.  Spearen,  47  Pa.  300,  1864;  Wenger  v.  Barnhart,  55 
Pa.  300,  1867;  Gregg  Twp.  v.  Jamison,  55  Pa.  468,  1867;  Bisbing  v. 
Bank,  93  Pa.  79,  1880;  Penna.  Canal  v.  Harris,  101  Pa.  80,  1882; 
Lehigh  Valley  R.  R.  v.  Brandtmaier,  113  Pa.  610,  1886;  Pierson  v. 
Duncan,  162  Pa.  187,  1894;  Larzelere  v.  Tiel,  3  Pa.  Super.  109,  1896; 
Ginder  v.  Bachman,  8  Pa.  Super.  405,  1898;  Gallagher  v.  Steam  Co., 
188  Pa.  95,  1898;  Reel  v.  Martin,  12  Pa.  Super.  340,  1899;  Stuart  v. 
Line,  11  Pa.  Super.  345,  1899 ;  Com.  v.  Winkelman,  12  Pa.  Super.  497, 
1899;  White  v.  Black,  14  Pa.  Super.  459,  1900;  Blank  v.  Barnhart, 
17  Pa.  Super.  214,  1901;  Thrall  v.  Wilson,  17  Pa.  Super.  376,  1901; 
Haydenville  Mining  Co.  v.  Sterner,  17  Pa.  Super.  609,  1901;  Renn  v. 
Tallman,  25  Pa.  Super.  503,  1904;  (c)  a  charge  is  misleading  which 
directly  or  indirectly  withdraws  attention  of  jury  from  material  issues 
or  matters  necessarily  entering  into  decision  of  cause:  Long  v.  Ram- 
say, 1  S.  &  R.  72,  1814;  Work  v.  McClay,  2  S.  &  R.  415,  1816;  Deal  v. 
McCormick,  3  S.  &  R.  343,  1817;  Hershey  v.  Hershey,  8  S.  &  R.  333, 
1822;  Harrisburg  Bank  v.  Forster,  8  Watts,  304,  1839;  Nieman 
v.  Ward,  1  Watts  &  Sergeant,  68,  1841;  Parker  v.  Donaldson,  6 
Watts  &  Sergeant  132,  1843;  Bovard  v.  Christy,  14  Pa.  267,  1850; 
Huston  v.  Barstow,  19  Pa.  169,  1852;  Garrett  v.  Gonter,  42  Pa.  143, 
1862 ;  Connelly  v.  Walker,  45  Pa.  449,  1863 ;  Gregg  Twp.  v.  Jamison, 
55  Pa.  468, 1867;  Hart  v.  Girard,  56  Pa.  23,  1867;  Ott  v.  Oyer,  106  Pa. 
6,  1844;  Shaver  v.  McCarthy,  110  Pa.  339,  1885;  Gary  v.  Woodward, 
127  Pa.  251,  1889;  Kelly  v.  Eby,  141  Pa.  176,  1891;  Reber  v.  Schitler, 
141  Pa.  640,  1891;  Fulliman  v.  Rose,  160  Pa.  47,  1894;  Winters  v. 
Mowrer,  163  Pa.  239,  1894;  Gallagher  v.  Steam  Co.,  188  Pa.  95,  1899; 

346 


REVIEW  ON  APPEAL. 


§§228-31]  Charge  as  Whole  §228  (20)  (c)-(g) 

Renn  v.  Tallman,  25  Pa.  Super.  503,  1904;  Com.  v.  Was- 
son,  42  Pa.  Super.  38;  (d)  stating  material  facts  unauthor- 
ized by  evidence  is  cause  for  reversal:  Stroh  v.  Hess,  1.  W.  & 
S.  147,  1841 ;  Nieman  v.  Ward,  1  W.  &  S.  68,  1841 ;  Seigle  v.  Louder- 
baugh,  5  Pa.  490,  1847;  Keeler  v.  Vantuyle,  6  Pa.  250,  1847;  O'Hara 
v.  Richardson,  46  Pa.  385,  1864;  Musselman  v.  R.  R.,  2  W.  N.  C.  105, 
1875;  Burke  v.  Maxwell,  81  Pa.  139,  1876;  Montz  v.  Morris,  89  Pa. 
392,  1879;  Fawcett  v.  Fawcett,  95  Pa.  376,  1880;  Collins  v.  Leafy, 
23  W.  N.  C.  264,  1889;  Phila.,  W.  &  Bait.  R.  R.  v.  Alvord,  128  Pa. 
42,  1889 ;  Huckestein  v.  Kelly,  139  Pa.  201, 1891 ;  Kelly  v.  Eby,  141  Pa. 
176,  1891;  Steinbrunner  v.  R.  R.,  146  Pa.  504,  1892;  Com.  v.  Swayne, 
1  Pa.  Super.  547, 1896;  Galbraith  v.  Phila.  Co.,  2  Pa.  Super.  359, 1896; 
Gavigan  v.  Refining  Co.,  3  Pa.  Super.  628,  1898;  Taylor  v.  Fuller,  5 
Pa.  Super.  193,  1897;  Dreibilbis  v.  Ebenshade,  6  Pa.  Super.  182,  1897; 
Edwards  v.  Gimbel,  187  Pa.  78,  1898;  Reel  v.  Martin.  12  Pa.  Super. 
340,  1899;  Cooley  v.  Traction  Co.,  189  Pa.  563,  1899;  Paul  v.  Kunz, 
195  Pa.  207,  1900;  Com.  v.  Light,  195  Pa.  220,  1900;  (e)  so  also  an 
instruction  which  assumes  truth  of  disputed  facts:  Hershey  v.  Her- 
shey,  8  S.  &  R.  333,  1822;  Armstrong  v.  Hussey,  12  S.  &  R.  315,  1825; 
Sellers  v.  Jones,  22  Pa.  423,  1853;  Central  R.  R.  v.  Green,  2  W.  N.  C. 
590,  1876;  Allegheny  R.  R.  v.  Steele,  11  W.  N.  C.  113,  1881;  Egbert 
v.  Payne,  99  Pa.  239,  1881;  Norton  v.  Lehn,  13  W.  N.  C.  339,  1883; 
Galland  v.  Schroeder,  21  W.  N.  C.  103,  1888;  Forker  v.  Boro.,  130  Pa. 
123,  1889;  Blanson  v.  Kitchenman,  148  Pa.  541,  1892;  Hasson  v. 
Klee,  168  Pa.  510,  1895;  Cole  v.  High,  173  Pa.  590,  1896;  Dreibilbis 
v.  Ebenshade,  6  Pa.  Super.  182,  1897;  Stuart  v.  Line,  11  Pa.  Super. 
345,  1899 ;  McCabe  v.  Phila.,  12  Pa.  Super.  383,  1899 ;  Hayes  v.  R.  R., 
195  Pa.  184,  1900;  Coyle  v.  R.  R.,  18  Pa.  Super.  235,  1901;  Whiting 
Mfg.  Co.  v.  Bank,  15  Pa.  Super.  419,  1901;  Com.  v.  Cooper,  27  Pa. 
Super.  8,  1904;  (f)  and  where  influence  of  misstatements  cannot  be 
determined,  court  will  reverse  even  though  error  was  not  in  regard  to 
main  issue  of  case :  Steinbrunner  v.  R.  R.,  146  Pa.  504,  1892 ;  Reel  v. 
Martin,  12  Pa.  Super.  340,  1900;  (g)  an  indefinite,  confusing  or  con- 
tradictory charge  will  be  reversed :  Gardinier  v.  Marcy,  5  Watts  337, 
1836 ;  Monongahela  Bridge  Co.  v.  Kirk,  46  Pa.  112,  1863 ;  Bartdorff  v. 
Bank,  61  Pa.  179,  1869;  Phila.  etc.  R.  R.  v.  Adams,  89  Pa.  31,  1879; 
Lee  v.  Newell,  107  Pa.  283,  1884;  Keil  v.  Gas  Co.,  131  Pa.  466,  1890; 
Gearing  v.  Lacher,  146  Pa.  397, 1892;  Wolf  v.  Wolf,  158  Pa.  621, 1893; 
Hendrick  v.  Hutchinson,  165  Pa.  208,  1894;  Pister  v.  Asso.,  3  Pa. 

347 


REVIEW  ON  APPEAL. 


§228  (20)  (g)-(i)  Charge  as  Whole  [Chap.  15, 

Super.  50,  1896;  Larzelere  v.  Tiel,  3  Pa.  Super.  109,  1896;  Baker  v. 
Hagey,  177  Pa.  128,  1896;  Harding  v.  Lloyd,  3  Pa.  Super.  293,  1897; 
Shrader  v.  Glass  Co.,  179  Pa.  623,  1897;  Edwards  v.  Gimbel,  187  Pa, 
78,  1898;  Stuart  v.  Line,  11  Pa.  Super.  345,  1899;  Ensminger  v.  Hess, 
192  Pa.  432,  1901;  Elk  Co.  v.  Brennan,  203  Pa.  232,  1902;  Rondinella 
v.  Ins.  Co.,  24  Pa.  Super.  293, 1904;  (h)  it  is  reversible  error  for  court 
to  misstate  or  misapply  legal  principles,  or  in  any  manner  to  convey 
to  jury  a  wrong  impression  of  a  legal  right  or  duty :  Phoenix  Ins.  Co. 
v.  Pratt,  2  Binn.  308, 1810;  Swartz  v.  Moore,  5  S.  &  B.  257, 1819;  Kis- 
singer v.  Thompson,  12  S.  &  R.  44, 1824;  Baker  v.  Lewis,  4  Rawle  356, 
1834;  Simpson  v.  McBeth,  4  Watts  409,  1835;  Heister  v.  Laird,  1  W.  & 
S.  245,  1841;  Gilchrist  v.  Rogers,  6  W.  &  S.  488,  1843;  Greber  v. 
Kleckner,  2  Pa.  289,  1845;  Keeler  v.  Vantuyle,  6  Pa.  250,  1847;  Hol- 
liday  v.  Rheem,  18  Pa.  465,  1852;  Reeves  v.  Railroad  Co.,  30  Pa.  454, 
1858;  Delaware  &  Hudson  Canal  Co.  v.  Torrey,  33  Pa.  143, 1859;  Tobin 
v.  Gregg,  34  Pa.  446,  1859;  Pearsoll  v.  Chapin,  44  Pa.  9,  1862;  Con- 
nelly v.  Walker,  45  Pa.  449, 1863;  Phila.  &  Read.  R.  R.  Co.  v.  Spearen, 
47  Pa.  300,  1864;  Wenger  v.  Barnhart,  55  Pa.  300,  1847;  Gilmore  v. 
Hunt,  66  Pa.  321,  1870;  Penna.  R.  R.  Co.  v.  Berry,  68  Pa.  272,  1871; 
Murray  v.  Com.,  79  Pa.  311,  1875;  Hulherrin  v.  Railroad  Co.,  81  Pa. 
366,  1876;  Meyers  v.  Com.,  83  Pa.  131,  1876;  King  v.  Thompson,  87 
Pa.  365,  1878;  Penna  R.  R.  Co.  v.  Bock,  93  Pa.  427,  1880;  Oram  v. 
Rothermel,  98  Pa.  300,  1881;  Rice  v.  Com.,  100  Pa.  28,  1882;  Ott  v. 
Oyer,  106  Pa.  6,  1884;  Lee  v.  Newell,  107  Pa.  283, 1884;  Shaver  v.  Mc- 
Carthy, 110  Pa.  339,  1885;  Smith  v.  Walter,  125  Pa.  453,  1889;  Rich- 
ards v.  Gas  Co.,  130  Pa.  37,  1889;  Buck  v.  Railroad  Co.,  150  Pa.  170, 
1892;  Mahaffey  v.  Byers,  151  Pa.  92,  1892;  Hower  v.  Ulrich,  156  Pa. 
410, 1893;  Toole  v.  Railroad  Co.,  158  Pa.  99, 1893;  Athens  Boro.  v.  Car- 
mer,  169  Pa.  426,  1895;  Hudson  v.  Watson,  2  Pa.  Super.  422,  1896; 
Gibberson  v.  Mills  Co.,  174  Pa.  369,  1896;  Braunschweiger  v.  Waits, 
179  Pa.  47, 1897;  Taylor  v.  Paul,  6  Pa.  Super.  496, 1898;  Miller  v.  Mil- 
ler, 187  Pa.  572,  1898;  Com.  v.  Sayars,  21  Pa.  Super.  75,  1902;  Elk 
Co.  v.  Brennan,  203  Pa.  232,  1902 ;  Jensen  v.  Ry.  Co.,  24  Pa.  Super.  4, 
1903;  Rondinella  v.  Ins.  Co.,  24  Pa.  Super.  293, 1904;  Com.  v.  Pearl,  29 
Pa.  Super.  307,  1905;  but  see  (m),  below;  (i)  but  appellate  court  will 
not  reverse  for  error  which  verdict  has  rendered  immaterial:  High  v. 
Berrett,  148  Pa.  261,  1892;  Lautner  v.  Kann,  184  Pa.  334,  1898;  Com. 
v.  Coble,  9  Pa,  Super.  215,  1899;  Com.  v.  Stillwagon,  13  Pa.  Super. 
547,  1900;  Brown  v.  Montgomery,  21  Pa.  Super.  262,  1902;  Com.  v. 

348 


REVIEW  ON  APPEAL. 


§§228-31]  Charge  as  Whole  §228  (20)  (i)-(n) 

Haun,  27  Pa.  Super.  33,  1904;  Adams  v.  Trac.  Co.,  41  Pa.  Super.  403. 
1910;  Jackson  v.  R.  R.,  228  Pa.  366,  1910;  see  notes  (22)  (d2)  and 
(25)  (1),  this  section;  (j)  mistaken  or  inaccurate  statements  of  law 
or  fact  are  not  cause  for  reversal  where  it  is  apparent  that  party  com- 
plaining has  not  been  injured  thereby:  Malson  v.  Fry,  1  Watts  433, 
1833;  McDowell  v.  Oyer,  21  Pa.  417,  1853;  Pearce  v.  Langfit,  101  Pa. 
507,  1882;  McCahan  v.  Wharton,  121  Pa.  424,  1888;  Seltzer  v.  Brund- 
age,  2  Mona.  426,  1888;  Collins  v.  Leafey,  124  Pa.  203,  1889;  Sergeant 
v.  Martin,  133  Pa.  122,  1890;  Lewis  v.  Rattigan,  138  Pa.  308,  1891; 
Jaffray  v.  Frothingham,  148  Pa.  213,  1892;  Sommer  v.  Gilmore,  168 
Pa.  117,  1895;  Com.  v.  Bowman,  171  Pa.  448,  1895;  Pittsburg  Safe 
Dep.  Co.  v.  Motheral,  8  Pa.  Super.  433,  1898;  Wetherill  v.  Erwin,  12 
Pa.  Super.  259,  1899;  Ferrell  v.  Reed,  14  Pa.  Super.  27,  1900;  Claflin 
v.  Querns,  15  Pa.  Super.  464,  1900;  Com.  v.  Bubius,  197  Pa.  542,  1901; 
Provident  Trust  Co.  v.  Phila.,  202  Pa.  78,  1902;  Com.  v.  Washington, 
202  Pa.  148,  1902 ;  Abington  Dairy  Co.  v.  Reynolds,  24  Pa.  Super.  632, 
1904;  Cox  v.  Wilson,  25  Pa.  Super.  635, 1904;  Evans  v.  Bourse,  215  Pa. 
652,  1906;  Com.  v.  Fencez,  226  Pa.  114,  1910;  see  also  (a)  and 
(m),  this  note;  (k)  or  where  error  is  corrected  before  jury  retires: 
Pearce  v.  Langfit,  101  Pa.  507,  1882 ;  Sergeant  v.  Martin,  133  Pa.  122, 
1890;  Mifflin  Bridge  Co.  v.  County,  144  Pa.  365,  1892;  Krepp  v.  Car- 
lisle, 157  Pa.  358, 1893;  Sommer  v.  Gilmore,  168  Pa.  117, 1895;  Com.  v. 
Hazlett,  16  Pa.  Super.  534,  1901;  O'Donnell  v.  Gaffney,  22  Pa.  Super. 
316, 1903;  Com.  v.  Razmus,  210  Pa.  609,  1905;  see  also  (r),  this  note; 
(1)  and  proper  remedy  for  refusal  to  correct  such  statements  is  mo- 
tion for  new  trial:  Graham  v.  Graham,  1  S.  &  R.  330,  1815;  Henwood 
v.  Cheeseman,  3  S.  &  R.  500, 1817;  Dennis  v.  Alexander,  3  Pa.  50, 1846; 
Hamet  v.  Dundass,  4  Pa.  178,  1846;  (m)  an  erroneous  statement  of 
law  in  charge  is  harmless  where  it  could  have  no  effect  on  verdict: 
Chambers  v.  Bedell,  2  W.  &  S.  225,  1841 ;  Brewster  v.  Sterrett,  32  Pa, 
115,  1858;  Chase  v.  Hubbard,  99  Pa.  226,  1881;  Bedell  v.  Errett,  8 
Sad.  418,  1887;  Malone  v.  R.  R.,  157  Pa.  430,  1893;  Boyle  v.  Hazleton, 
8  Kulp  239, 1896;  Lautner  v.  Kann,  184  Pa.  334, 1898;  Ferrell  v.  Reed, 
14  Pa.  Super.  27,  1900;  Brown  v.  Montgomery,  21  Pa.  Super.  262, 
1902;  Swing  v.  Walker,  27  Pa.  Super.  366,  1904;  Sperry  v.  Seidel,  218 
Pa.  16,  1907;  see  also  (j),  above;  (n)  and  misstatement  in  one  part 
of  charge  may  be  cured  by  a  clear  exposition  of  the  point  in  subse- 
quent part :  Linn  v.  Naglee,  4  Whar.  92,  1839 ;  Whitaker  v.  Campbell, 
187  Pa.  113,  1898;  Owens  v.  Lancaster,  193  Pa.  436,  1899;  Stroud  v. 

349 


REVIEW  ON  APPEAL. 


§228  (20)  (n)-(u)  Charge  as  Whole  [Chap.  15, 

Smith,  194  Pa.  502,  1900;  Bailey  v.  Board  of  Publication,  200  Pa.  406, 
1901;  Fitzpatrick  v.  Traction  Co.,  206  Pa.  335,  1903;  Thomas  v.  But- 
ler, 24  Pa.  Super.  305,  1904;  Bracken  v.  R.  R.,  222  Pa.  410,  1909;  (o) 
unless  tendency  of  the  two  statements  is  to  mislead :  Baker  v.  Hagey, 
177  Pa.  128,  1896;  Mitchell  v.  Schreiner,  43  Pa.  Super. 
633,  639,  1910;  (p)  if  court  clearly  and  emphatically  withdraws 
erroneous  statements,  the  error  will  be  cured:  Williams  v.  Com.,  29 
Pa.  102,  1855;  Keil  v.  Gas  Co.,  131  Pa.  466,  1890;  Sergeant  v.  Martin, 
133  Pa.  122,  1890;  (q)  an  inadequate  statement  may  be  cured  by  sub- 
sequent answer  to  point  which  covers  the  ground:  Claflin  v.  Swoyer, 
5  Kulp  107,  1888;  Thomas  v.  Butler,  24  Pa.  Super.  305,  1904;  see  (n), 
above;  (r)  if  court  makes  a  mistake,  counsel  should  call  his  attention 
to  it  immediately  after  charge  and  before  jury  retires:  Eckman  v. 
Eckman,  68  Pa.  460,  1871;  Yerkes  v.  Wilson,  81*  Pa.  9,  1870;  Com.  v. 
Zappe,  153  Pa.  498, 1893;  Krepps  v.  Carlisle,  157  Pa.  358, 1893;  Taylor 
v.  Burrell,  7  Pa.  Super.  461,  1898;  Mann  v.  Cowan,  8  Pa.  Super.  30, 
1898;  Crawford  v.  Pyle,  190  Pa.  263,  1899;  Com.  v.  Kay,  14  Pa.  Super. 
376,  1900;  Claflin  v.  Querns,  15  Pa.  Super.  464,  1900;  Provident  Tr. 
Co.  v.  Phila.,  202  Pa.  78,  1902;  O'Donnell  v.  Gaffney,  22  Pa.  Super. 
316, 1903 ;  Kuntz  v.  R.  R.,  206  Pa.  162,  1903 ;  Stewart  v.  Gas  Coal  Co., 
207  Pa.  220,  1903;  MeCosh  v.  Myers,  25  Pa.  Super.  61,  1904;  Oehmler 
v.  Ry.,  25  Pa.  Super.  617,  1904;  Com.  v.  Razmus,  210  Pa.  609,  1905; 
Medis  v.  Bentley,  216  Pa.  324,  1907;  Johnson  v.  Ins.  Co.,  218  Pa.  421, 
1907;  Penna.  R.  R.  v.  R.  R.,  219  Pa.  361, 1908;  Biehl  v.  Assurance  Co., 
38  Pa.  Super.  110, 1909;  Chestnut  Hill  Tpk.  v.  County,  228  Pa.  1, 1910; 
Brown  v.  Ry.,  43  Pa.  Super.  61,  1910 ;  Com.  v.  Wasson,  42  Pa.  Super. 
39, 1910;  McMeekin  v.  Ry.,  229  Pa.  572,  1911;  see  also  (k),  above;  (s) 
appellate  court  will  not  reverse  because  of  misstatement  which  was  in 
favor  of  party  complaining:  Mcllvaine  v.  Mcllvaine,  6  S.  &  R.  559, 
1819;  Collins  v.  Rush,  7  S.  &  R.  147,  1821;  Brown  v.  Caldwell,  10  S.  & 
R.  114, 1823;  Deal  v.  Bogue,  20  Pa.  228, 1853;  Lillie  v.  Car  Co.,  209  Pa. 
161,  1904;  (t)  nor  for  charge  which  was  substantially  as  requested: 
Benson  v.  Maxwell,  105  Pa.  274,  1884;  Stroud  v.  Smith,  194  Pa.  502, 
1900;  (u)  nor  will  correct  charge  be  reversed  merely  because  reason 
given  for  instructions  is  erroneous:  Gast  v.  Porter,  13  Pa.  533,  1850; 
Porter  v.  Seiler,  23  Pa.  424,  1854;  Rupp  v.  Orr,  31  Pa.  517,  1858;  Oak- 
land Ry.  v.  Fielding,  48  Pa.  320,  1865 ;  Myers  v.  Coal  Co.,  126  Pa.  582, 
1889 ;  Busch  v.  Calhoun,  14  Pa.  Super.  578,  1900 ;  Central  Trust  Co.  v. 
White,  206  Pa.  611,  1903;  Welliver  v.  Canal  Co.,  23  Pa.  Super.  79, 

350 


REVIEW  ON  APPEAL. 


§§228-31]  Charge  as  Whole  §  223  (20)  (v)-(h2) 

1903;  see  also  note  (2)   (h),  above;  (v)  or  because  of  elaborate  and 
wordy  reasons,  if  they  did  not  confuse  jury:  Thrall  v.  Wilson,  17  Pa. 
Super.  376, 1901 ;  (w)  court  will  not  reverse  for  erroneous  construction 
of  written  instrument  by  trial  court  where  appellant  was  not  preju- 
diced by  such  construction:  Franciscus  v.  Reigart,  4  Watts  98;  477, 
1835;  Monongahela  Ins.  Co.  v.  Chester,  43  Pa.  491,  1862;  (x)  nor  for 
error  in  matters  not  pertinent  to  the  issue;  Numan  v.  Kupp,  5  Binn. 
73,  1812;  Linn  v.  Naglee,  4  Whar.  92,  1838;  Strawbridge  v.  Cartledge, 
7  W.  &  S.  394,  1844;  Girard  Ins.  Co.  v.  Stephenson,  37  Pa.  293,  1860; 
McMarlan  v.  English,  74  Pa.  296,  1873;  Grambs  v.  Lynch,  4  Penny. 
243, 1884;  Lewis  v.  Water  Co.,  176  Pa.  237, 1896;  Humphrey  v.  Cooper, 
183  Pa.  432,  1898;  Penna.  R.  R.  v.  R.  R.,  219  Pa.  361,  1908;  Chestnut 
Hill  Tpk.  v.  County,  228  Pa.  1,  1910 ;  Com.  v.  Lee,  226  Pa.  283,  1910 ; 
(y)  nor  for  portion  of  charge  delivered  in  foreign  language,  which  was 
in  no  probability  understood  by  jury:  Wenger  v.  Barnhart,  55  Pa.  300, 
1867;  (z)  nor  for  mistake  in,  or  omission  to  give,  instructions  on  mat- 
ters of  minor  importance:  Peterson  Co.  v.  Blaisdell,  169  Pa.  636, 
1895;   (a2)  error  in  directing  amount  of  judgment  may  be  cured  by 
subsequent  computation  and  remittitur  of  excess:  Moyer  v.  Fretz,  1 
Mona.  289,  1889;  Jones  v.  Hughes,  16  Atl.  849,  1889;  Taylor  v.  Fuller, 
5  Pa.  Super.  193,  1897;  (b2)  it  is  not  error  to  assume  facts  merely  by 
way  of  illustration  of  legal  questions:  Long  v.  Milford,  137  Pa.  122, 
1890;  Platz  v.  Township,  178  Pa.  601,  1897;  (c2)  it  is  error  for  trial 
judge  in  the  absence  of  parties  or  counsel  to  send  written  instruc- 
tions to  jury  after  they  have  retired:  Earon  v.  Mackey,  106  Pa.  452, 
1884;  Com.  v.  House,  6  Pa.  Super.  92,  1897;  Somer  v.  Huber,  183  Pa. 
162,  1897;  but  see  contra,  Cunningham  v.  Patton,  6  Pa.  355,  1847; 
(d2)   jury  may  be  recalled  for  instructions  inadvertently  omitted: 
Cox  v.  Highley,  100  Pa.  249,  1882   (e2)   and  may  be  instructed  to 
make  special  finding  of  certain  facts  in  addition  to  general  verdict: 
Chambers  v.  Davis,  3  Whar.  40,  1837;  Patterson  v.  Kountz,  63  Pa. 
246,  1869;   (f2)  it  is  bad  practice  for  trial  judge  to  read  plaintiff's 
statement  to  jury:  Reese  v.  Hershey,  163  Pa.  253,  1894  (g2)  but  ap- 
pellate court  will  not  reverse  where  such  reading  did  no  harm :  Reel  v. 
Martin,  12  Pa.  Super.  340,  1899;  Philadelphia  v.  Neill  Trust  Co.,  211 
Pa.  253,  1905;    (h2)   it  is  not  reversible  error  to  state  amount  of 
claim  where  jury  are  not  told  that  was  amount  to  which  plaintiff  was 
entitled  and  verdict  is  reasonable:  Williams  v.  Meadville,  31  Pa.  Su- 
per. 580,  1906;  Breinisholtz  v.  R.  R.,  229  Pa.  88,  1910;  see  note  (29) 

351 


REVIEW  ON  APPEAL. 


§228  (20)  (i2)-(y2)  Charge  as  Whole  [Chap.  15, 

(k),  (1),  below;  (12)  or  to  read  authorities  in  support  of  his  statements 
of  law:  Henry  v.  Klopper,  147  Pa.  178, 1892;  Huffman  v.  Mcllvaine,  13 
Pa.  Super.  108,  1900;  Thomas  v.  Butler,  24  Pa.  Super.  305,  1904;  (j2) 
though  it  is  not  good  practice:  Huffman  v.  Mcllvaine,  13  Pa.  Super. 
108,  1900 ;  (k2)  and  opinion  of  Supreme  Court  on  former  trial  of  case 
should  not  be  read:  Good  v.  Mylin,  13  Pa.  538, 1850;  Ege  v.  Medlar,  82 
Pa.  86,  1876;  compare  Noble  v.  McClintock,  6  W.  &  S.  58,  1843;  (12) 
nor  should  result  of  former  proceedings  in  case  be  stated  to  jury: 
Ridgely  v.  Spenser,  2  Bin.  70,  1809;  Shaeffer  v.  Kreitzer,  6  Bin.  430, 
1813;  Hyslop  v.  Crozier,  1  Miles  267, 1836;  Tryon  v.  Miller,  1  Whar.  11, 
1835;  Delaware  Canal  Co.  v.  Barnes,  31  Pa.  193,  1858;  Erie  R.  R.  v. 
Smith,  125  Pa.  259, 1889;  Fisher  v.  Penna.  Co.,  34  Pa.  Super.  500, 1907; 
(m2)  where  court,  at  request  of  counsel,  expresses  opinion  on  law  and 
facts,  appellate  court  will  not  reverse  for  error  therein:  Rouvert  v. 
Patton,  12  S.  &  R.  253,  1824;  (n2)  it  is  not  error  for  court  to  refer  to 
principles  of  law  not  strictly  applicable  though  it  is  not  good  prac- 
tice: Axtell  v.  Caldwell,  24  Pa.  88,  1854;  (o2)  or  charge  on  general 
principles,  leaving  to  jury  their  application  to  facts  of  case:  Cassell 
v.  Cooke,  8  S.  &  R.  268,  1822;  Maus  v.  Montgomery,  15  S.  &  R.  221, 
1826;  Com.  v.  Loesch,  153  Pa.  502,  1893;  (p2)  or  point  out  principles 
on  which  law  is  based:  Cote  v.  Schoen,  1  Pa.  Super.  583,  1896;  (q2) 
or  state  legal  effect  of  facts  proved :  Johnston  v.  Gray,  16  S.  &  R.  361, 
1827;   (r2)  or  comment  unfavorably,  in  general  terms,  on  contracts 
like  that  in  case:  McFeaters  v.  Pattison,  188  Pa.  270,  1898;  (s2)  it  is 
reversible  error  to  instruct  jury  that   they  may   compromise   their 
verdict:  Boden  v.  Irwin,  92  Pa.  345,  1879;   (t2)   or  that  they  were 
bound  to  agree,  or  they  would  be  kept  in  jury  room  for  weeks :  Miller 
v.  Miller,  187  Pa.  572,  1898;  (u2)  in  criminal  case  it  is  error  to  ex- 
plain to  jury  result  of  verdict  of  guilty :  Com.  v.  Switzer,  134  Pa.  383, 
1890;  (v2)  but  it  is  proper  to  instruct  them  not  to  be  frightened  from 
their  duty  by  any  fear  of  what  the  punishment  may  be :  Coyle  v.  Com., 
100  Pa.  573,  1882;  (w2)  in  absence  of  express  request,  it  is  not  error 
for  court  to  neglect  to  define  or  illustrate  legal  terms :  Cooper  v.  Alti- 
mus,  62  Pa.  486,  1869 :  Karl  v.  Juniata  County,  206  Pa.  633,  1903 ;  (x2) 
it  is  error  for  court  to  call  jury's  attention  to  hysterical  outbreak  of 
plaintiff  in  action  for  assault  when  off  the  witness  stand,  and  state  that 
her  excitable  temperament  might  have  been  cause  of  trouble  with  de- 
fendant: Cridland  v.  Crow,  221  Pa.  618, 1908;  (y2)  it  is  error  in  crim- 
inal case  to  charge  that  jury  are  judges  of  fact  and  law  and  that  they 

352 


REVIEW  ON  APPEAL. 


§§228-31]  Charge— Comments  on  Evidence     §228  (20)  (y2)-(21)  (a) 

might  disregard  anything  court  may  say  as  to  law  of  case:  Com.  v. 
Goldberg,  4  Pa.  Super.  142,  1897;  (z2)  it  is  error  to  say  to  jury  that 
they  should  impute  no  crime  to  agent  of  carrier  on  mere  inference  if 
they  could  avoid  it,  there  being  no  evidence  of  wrongdoing  by  agent: 
Franklin  Trust  Co.  v.  R.  R.,  222  Pa.  96,  1908. 

(21)  —  Comments  on  Evidence,  (a)  It  is  not  only  proper,  but  in 
some  cases  it  is  the  duty,  of  trial  judge  to  comment  on  testimony,  and 
so  long  as  he  fairly  leaves  it  to  the  jury  to  decide  for  themselves  dis- 
puted questions  of  fact,  he  may  express  his  opinion  on  witnesses, 
parties,  evidence  or  weight  of  evidence :  Long  v.  Ramsey,  1  S.  &  R.  72, 
1814;  Williams  v.  Carr,  1  Rawle,  420,  1829;  Delaney  v.  Robinson,  2 
Whar.  503, 1837;  Burr  v.  Sim,  4  Whar.  150, 1838;  Shoneman  v.  Fegley, 
14  Pa.  376,  1850;  Sample  v.  Robb,  16  Pa.  305,  1851;  Repsher  v.  Wat- 
son, 17  Pa.  365,  1851;  Porter  v.  Seiler,  23  Pa.  424,  1854;  Graham  v. 
Smith,  25  Pa.  323,  1855;  Crum  v.  Burke,  25  Pa.  377,  1855;  Cathcart  v. 
Com.,  37  Pa.  108,  1860;  Thompson  v.  Franks,  37  Pa.  327,  1860;  Dit- 
mars  v.  Com.,  47  Pa.  335,  1864;  Ralston  v.  Groff,  55  Pa.  276,  1867; 
Bitner  v.  Bitner,  65  Pa.  347,  1870;  Eckman  v.  Eckman,  68  Pa.  460, 
1871;  Johnston  v.  Com.,  85  Pa.  54,  1877;  Leibig  v.  Steiner,  94  Pa.  466, 
1880;  Bonner  v.  Herrick,  99  Pa.  220,  1881;  Shovlin  v.  Com.,  106  Pa. 
369,  1884;  McLain  v.  Com.,  110  Pa.  263,  1885;  McMeen  v.  Com.,  114 
Pa.  300,  1886;  Potteiger  v.  Potteiger,  5  Sad.  398,  1887;  McClintock 
v.  R.  R.,  21  W.  N.  C.  133,  1888;  Supplee  v.  Timothy,  124  Pa.  375, 
1889;  Dimmick  v.  Sexton,  125  Pa.  334,  1889;  Schuylkill,  etc.,  Ry.  Co. 
v.  Stocker,  128  Pa.  233,  1889;  Newhard  v.  Yundt,  132  Pa.  324,  1890; 
McLenahan  v.  Andrews,  135  Pa.  383,  1890;  Com.  v.  Orr,  138  Pa.  276, 
1890 ;  Didier  v.  Penna.  Co.,  146  Pa.  582,  1891 ;  Phila.  v.  Cemetery  Co., 
147  Pa.  170,  1892;  Fredericks  v.  R.  R.,  157  Pa.  103,  1893;  Baker  v. 
Irish,  172  Pa.  528, 1895;  Price  v.  Hamscher,  174  Pa.  73,  1896;  Com.  v. 
Eckerd,  174  Pa.  137, 1896;  Pool  v.  White,  175  Pa.  459, 1896;  Omenset- 
ter  v.  Kemper,  6  Pa.  Super.  309,  1898;  McNeile  v.  Cridland,  6  Pa. 
Super.  428,  1898;  Smucker  v.  R.  R.,  6  Pa.  Super.  521,  1898;  Com.  v. 
Cornelly,  7  Pa.  Super.  77, 1898;  Com.  v.  Keene,  7  Pa.  Super.  293, 1898; 
Taylor  v.  Burrell,  7  Pa.  Super.  461,  1898;  Ginder  v.  Bachman,  8  Pa. 
Super.  405,  1898;  Powers  v.  Rich,  184  Pa.  325,  1898;  Stern  v.  Stan- 
ton,  184  Penna.  468,  1898;  Com.  v.  Van  Horn,  188  Penna.  143, 
1898;  McFeaters  v.  Pattison,  188  Pa.  270,  1898;  Samuel 
v.  McKnight,  9  Pa.  Super.  352,  1899;  Sheehan  v.  Rosen,  12  Pa.  Super. 
298,  1899;  Com.  v.  Winkelman,  12  Pa.  Super.  497,  1899;  Com.  v. 

353 
23 


REVIEW  ON  APPEAL. 


§228  (21)  (a)-(h)        Charge — Comments  on  Evidence  [Chap.  15, 

Warner,  13  Pa.  Super.  461,  1900;  Owens  v.  Lancaster,  193  Pa.  436, 
1900;  McCormick  v.  McCormick,  194  Pa.  107,  1900;  Springer  v. 
Stiver,  16  Pa.  Super.  184,  1901;  Com.  v.  Zuern,  16  Pa.  Super.  588, 
1901 ;  Mills  v.  Plant,  18  Pa.  Super.  80,  1901 ;  Simmons  v.  R.  R.,  199  Pa. 
232,  1901;  Fitzpatrick  v.  Traction  Co.,  206  Pa.  335,  1903;  Rondinella 
v.  Ins.  Co.,  24  Pa.  Super.  293,  1904;  Com.  v.  Schoen,  25  Pa.  Super.  211, 
1904;  Oldham  v.  Express  Co.,  25  Pa.  Super.  549,  1904;  Knee  v.  Mc- 
Dowell, 25  Pa.  Super.  641, 1904;  Smith  v.  Township,  26  Pa.  Super.  234, 
1904;  Swing  v.  Walker,  27  Pa.  Super.  366,  1904;  Lappe  v.  Gfeller,  211 
Pa.  462,  1905;  Com.  v.  Clymer,  30  Pa.  Super.  61,  1906;  (b)  especially 
where  such  comment  simply  leads  minds  of  jurors  to  substantial  matter 
at  issue :  Com.  v.  Winkelman,  12  Pa.  Super.  497, 1899 ;  Com.  v.  Warner, 
13  Pa.  Super.  461,  1900;  (c)  extent  to  which  judge  should  comment  on 
evidence  is  largely  a  matter  of  discretion:  Penna.  R.  R.  v.  Goodman, 
62  Pa.  329,  1869 ;  Baker  v.  Irish,  172  Pa.  528,  1895 ;  Blank  v.  Barnhart, 
17  Pa.  Super.  214,  1901;  Thrall  v.  Wilson,  17  Pa.  Super.  376,  1901; 
Com.  v.  Wertheimer,  23  Pa.  Super.  192,  1903;  Com.  v.  Penrose,  27 
Pa.  Super.  101,  1905;  (d)  in  criminal  case,  an  expression  of  opinion 
that  there  is  nothing  in  evidence  to  reduce  crime  to  manslaughter  is 
not  cause  for  reversal  if  question  is  left  to  jury :  McClain  v.  Com.,  110 
Pa.  263,  1885;  (e)  where  evidence  is  in  itself  contradictory,  it  is  not 
error  for  court  to  charge  that  it  might  be  disregarded  or  subjected  to 
close  scrutiny:  Sharp  v.  Erie,  2  Sad.  480,  1886;  McConkey  v.  Com., 
101  Pa.  416,  1882;  (f)  and  he  may  call  attention  particularly  to  incon- 
sistencies in  plaintiff's  testimony  where  latter 's  credibility  is  at  issue: 
Brinton  v.  Walker,  15  Pa.  Super.  449,  1900 ;  Springer  v.  Stiver,  16  Pa. 
Super.  184,  1901;  (g)  and  reference  to  omission  of  party  to  produce 
evidence  is  proper  in  some  cases:  Hartman  v.  Incline  Plane  Co.,  11 
Pa.  Super.  438, 1899;  Oldham  v.  Express  Co.,  25  Pa.  Super.  549,  1904; 
(h)  but  a  charge  which  tends  to  belittle  and  prejudice  one  side  and 
which  is  not,  in  expression  and  tone,  a  fair,  impartial  and  judicial 
presentation  of  the  case,  will  be  reversed :  Nieman  v.  Ward,  1  W.  &  S. 
68. 1841 ;  Parker  v.  Donaldson,  6  W.  &  S.  132,  1843 ;  Cadbury  v.  Nolen, 
5  Pa.  320,  1847;  Hart  v.  Borough,  56  Pa.  23,  1867;  Dime  Savings  Inst. 
v.  Bank,  61  Pa.  391, 1869;  Penna.  R.  R.  Co.  v.  Berry,  68  Pa.  272,  1871; 
Bisbing  v.  Bank,  93  Pa.  79, 1880 ;  Fawcett  v.  Fawcett,  95  Pa.  376, 1880 ; 
Linn  v.  Com.,  96  Pa.  285, 1880;  Stokes  v.  Miller,  10  W.  N.  C.  241,  1881; 
Byles  v.  Hazlett,  11  W.  N.  C.  212,  1881;  Youngman  v.  Miller,  98 
Pa.  196, 1881;  Penna.  Canal  Co.  v.  Harris,  101  Pa.  80, 1882;  Gehman  v. 

354 


REVIEW  ON  APPEAL. 


§§228-31]  Charge — Comment  on  Evidence         §  228  (21)  (h)-(l) 

Erdman,  105  Pa.  371,  1884;  Reber  v.  Herring,  115  Pa.  599,  1887; 
Schwenk  v.  Kehler,  122  Pa.  67,  1888;  Reichenbach  v.  Ruddach,  127 
Pa.  564,  1889 ;  Steinbrunner  v.  Railroad  Co.,  146  Pa.  504,  1892 ;  Webb 
v.  Lees,  149  Pa.  13,  1892;  McKelvy  v.  Ins.  Co.,  161  Pa.  279,  1894; 
Pierson  v.  Duncan,  162  Pa.  187,  1894;  Kaufold  v.  Arnold,  163  Pa. 
269,  1894;  Young  v.  Merkel,  163  Pa.  513,  1894;  Dooner  v.  Canal  Co., 
164  Pa.  17,  1894;  Heydrick  v.  Hutchinson,  165  Pa.  208,  1894;  Howell 
v.  Mellon,  169  Pa.  138,  1895;  Tietz  v.  Traction  Co.,  169  Pa.  516,  1895; 
Minick  v.  Gring,  1  Pa.  Super.  484,  1896;  Com.  v.  Swayne,  1  Pa.  Super. 
547,  1896;  Hudson  v.  Watson,  2  Pa.  Super.  422,  1896;  Larzelere  v. 
Tiel,  3  Pa.  Super.  109,  1896;  Dosch  v.  Diem,  176  Pa.  603,  1896;  Phila. 
Trust  Co.  v.  Railroad  Co.,  177  Pa.  38,  1896;  Herrington  v.  Guernsey, 
177  Pa.  175,  1896;  Lerch  v.  Bard,  177  Pa.  197,  1896;  Smith  v.  Hine, 
179  Pa.  203,  1897;  Fineburg  v.  Railway,  182  Pa.  97,  1897;  Com.  v. 
Goldberg,  4  Pa.  Super.  142,  1896 ;  Taylor  v.  Fuller,  5  Pa.  Super.  193, 
1897;  Jones  v.  Cleveland,  6  Pa.  Super.  640,  1898;  Lehman  v.  Murtoff, 
7  Pa.  Super.  485,  1898;  Miller  v.  Miller,  187  Pa.  572,  1898;  Samuel  v. 
Knight,  9  Pa.  Super.  352,  1899;  McCabe  v.  Phila.,  12  Pa.  Super.  383, 
1899;  Com.  v.  Winkelman,  12  Pa.  Super.  497,  1899;  Com.  v.  Kay,  14 
Pa.  Super.  376,  1900 ;  Roth  v.  Roth,  15  Pa.  Super.  192,  1900 ;  Hayes  v. 
Railroad,  195  Pa.  184, 1900;  Baldi  v.  Ins.  Co.,  24  Pa.  Super.  275, 1903; 
Rondinella  v.  Ins.  Co.,  24  Pa.  Super.  293,  1903;  Renn  v.  Tallman,  25 
Pa.  Super.  503, 1904;  Plucker  v.  Miller,  26  Pa.  Super.  495,  1904;  Com. 
v.  Meads,  29  Pa.  Super.  321, 1905 ;  Clark  v.  Traction  Co.,  210  Pa.  636, 
1905;  (i)  so  also,  judicial  comments,  disparaging  to  witnesses  or 
parties,  without  proper  foundation  in  the  evidence  and  tending  to 
prejudice  one  side,  are  grounds  for  reversal:  Sampson  v.  Sampson,  4 
S.  &  R.  329,  1818;  Hocker  v.  Jamison,  2  W.  &  S.  438,  1841;  Burke  v. 
Maxwell,  81  Pa.  139,  1876;  Fawcett  v.  Fawcett,  95  Pa.  376,  1880; 
Stokes  v.  Miller,  10  W.  N.  C.  241,  1881;  Linn  v.  Com.,  96  Pa.  285, 
1880;  Curtin  v.  Somerset,  140  Pa.  70,  1891;  (see  also  (k),  below); 
(j)  charge  is  erroneous  which  calls  attention  to  testimony  of  one  side 
without  alluding  to  contradictions  therein:  Shaver  v.  McCarthy,  110 
Pa.  339,  1885;  Herrington  v.  Guernsey,  177  Pa.  175,  1896;  Fineburg 
v.  Ry.,  182  Pa.  97,  1897;  (k)  or  which  makes  use  of  extravagant  ex- 
pressions which  tend  to  influence  minds  of  jury:  Dreibilbis  v.  Esben- 
shade,  6  Pa.  Super.  182,  1897;  Com.  v.  Kay,  14  Pa.  Super.  376,  1900; 
(see  also  (i),  above);  (1)  a  judge  may  not  inform  jury  that  if  he 
were  in  jury  box  he  would  find  against  plaintiff,  even  though  he  qualify 

355 


REVIEW  ON  APPEAL. 


§228  (21)  (l)-(22)  (c)         Requests  for  Instructions  [Chap.  15, 

it  by  saying  they  are  not  bound  by  his  views:  Burke  v.  Maxwell,  81 
Pa.  139,  1870;  (m)  and  he  should  not  give  his  opinion  on  evidence 
where  both  parties  have  asked  for  and  been  refused  binding  instruc- 
tions: Samuel  v.  Knight  &  Co.,  9  Pa.  Super.  352,  1899;  (n)  where  de- 
fendant has  number  of  credible  witnesses  and  plaintiff  but  one,  it  is 
error  for  court  to  minimize  defendant's  numerical  advantage  and  to 
fail  to  instruct  as  to  difference  between  interested  and  disinterested 
testimony:  Davies  v.  Transit  Co.,  228  Pa.  176,  1910;  Cohen  v.  Transit 
Co.,  228  Pa.  243,  1910. 

(22)  —  Requests  for  Instructions — Answers,  (a)  Under  Act  March 
24,  1877,  P.  L.  38,  (§148,  above),  it  is  the  duty  of  the  trial  judge,  on 
request,  to  reduce  his  answers  and  points  to  writing  and  read  them 
to  the  jury;  but  it  has  been  frequently  held,  both  prior  and  subse- 
quent to  the  passage  of  this  act,  that  if  the  points  presented  were  suf- 
ficiently answered  in  the  general  charge,  failure  to  do  so  is  not  re- 
versible error;  Munderbach  v.  Lutz,  14  S.  &  R.  220,  1826;  Coates  v. 
Roberts,  4  Rawle  100,  1833;  Herron  v.  Fry,  2  P.  &  W.  263,  1830; 
Lynch  v.  Welsh,  3  Pa.  294,  1846;  Ridgeway  v.  Longaker,  18  Pa.  215, 
1852;  Morrison  v.  Davis,  20  Pa.  171,  1852;  Groft  v.  Weakland,  34  Pa. 
304,  1859;  Arbuckle  v.  Thompson,  37  Pa,  170,  1860;  Pierce  v.  Cloud, 
42  Pa.  102,  1862;  Lycoming  Ins.  Co.  v.  Schreffler,  42  Pa.  188,  1862; 
Patterson  v.  Kountz,  63  Pa.  246, 1869 ;  Winsor  v,  Maddock,  64  Pa.  231, 
1870;  Smith  v.  Bouvier,  70  Pa.  325,  1872;  Murray  v.  Com.,  79  Pa.  311, 
1875;  Rice  v.  Olin,  79  Pa.  391,  1875;  Schoning  v.  Yard,  88  Pa.  286, 
1870;  Bishop  v.  Goodhart,  135  Pa.  374,  1890;  Readdy  v.  Borough,  137 
Pa.  92, 1890;  Com.  v.  McManus,  143  Pa.  64, 1891;  Kroegher  v.  McCon- 
way,  Torley  Co.,  149  Pa.  444,  1892;  Wblbert  v.  Trexler,  156  Pa.  112, 
1893;  Gallagher  v.  Phila.,  4  Pa.  Super.  60,  1897;  Scheaffer  v.  Sensenig, 
182  Pa.  634,  1897;  Cosgrove  v.  Cummings,  190  Pa.  525,  1899;  Creachen 
v.  Bromley  Bros.,  214  Pa.  15,  1906;  Miller  v.  Machine  Co.,  220  Pa.  181, 
1908;  Dungan,  Hood  &  Co.  v.  Ry.,  41  Pa.  Super.  61,  1910;  Hufnagle 
v.  Canal  Co.,  227  Pa.  476,  1910;  (b)  but  referring  jury  to  general 
charge  for  answer  to  points  is  condemned  as  bad  practice  and  as 
being  misleading  to  jury:  Freeman  v.  Pennock,  3  P.  &  W.  317,  1832; 
Huddleston  v.  Borough,  111  Pa.  110,  1885;  Duncan  v.  Sherman,  121 
Pa.  520,  1888;  People's  Bank  v.  Denig,  131  Pa.  241,  1890;  (c)  an 
obscure  answer  to  points  may  be  aided  by  general  charge;  but  not 
an  erroneous  one:  Murray  v.  Com.,  79  Pa.  311,  1875;  Rice  v.  Olin, 
79  Pa.  391,  1875;  Calhoun  v.  Laundry,  220  Pa.  281,  1908;  (d)  if 

356 


REVIEW  ON  APPEAL. 


§§  228-31  ]  Requests  for  Instructions  §  228  ( 22 )  ( d )  -  ( h ) 

points  are  refused  because  answered  in  general  charge,  counsel  should 
except  if  he  thinks  they  have  not  been  so  answered:  Ensminger  v. 
Hess,  192  Pa.  432,  1899;  see  §148  (2);  (e)  subject  to  the 
above  rules,  a  party  is  entitled  to  distinct,  unequivocal  and  responsive 
answers  to  his  points  if  they  are  properly  drawn  and  present  ques- 
tions which  fairly  arise  and  if  they  can  be  answered  by  simple  affirm- 
ance or  refusal:  Mills  v.  Buchanan,  14  Pa.  59,  1850;  Penna.  R.  R.  Co. 
v.  Zebe,  33  Pa.  318,  1859;  Pitts,  etc.  Ry.  v.  Evans,  53  Pa.  250,  1866; 
Penna.  Co.  v.  Toomey,  91  Pa.  256,  1879;  Allegheny  R.  R.  v.  Steele, 
11  W.  N.  C.  113,  1881;  Waynesboro  Ins.  v.  Creaton,  98  Pa.  451,  1881; 
Huddleston  v.  Borough,  111  Pa.  110,  1885 ;  Swank  v.  Phillips,  113  Pa. 

482,  1886;  Kraft  v.  Smith,  117  Pa.  183,  1887;  Cross  v.  Tyrone  Co.,  121 
Pa.  387,  1888;  Citizens'  Ry.  v.  Ketcham,  122  Pa.  228,  1888;  Hoffman 
v.  Clough,  124  Pa.  505,  1889;  New  York  R.  R.  v.  Enches,  127  Pa.  316, 
1889 ;  Tyrone,  etc.,  Co.  v.  Cross,  128  Pa.  636,  1889 ;  Sproat  v.  Poor  Di- 
rectors, 145  Pa.  598,  1892;  Sommer  v.  Gilmore,  160  Pa.  129,  1894; 
Whitmire  v.  Montgomery,  165  Pa.  253, 1894;  Hudson  v.  Watson,  2  Pa. 
Super.  422,  1896;  Giberson  v.  Mills,  174  Pa.  369,  1896;  Musick  v. 
Borough,  184  Pa.  375,  1898;  Custer  v.  School  Dist.,  12  Pa.  Super.  102, 
1899;  Thomas  v.  Butler,  24  Pa.  Super.  305,  1904;  (f)  the  object  of 
written  points  is  to  obtain  specific  rulings  on  law  applicable  to  facts, 
and  court  is  not  bound  to  answer  a  point  that  "if  jury  believe  plain- 
tiff's evidence  verdict  should  be  for  plaintiff":  Malone  v.  R.  R.,  157 
Pa.  430,  1893;  (g)  it  is  not  always  commendable  practice  to  present 
as  points  extracts  from  opinion  of  Supreme  Court:  Jensen  v.  Ry.,  24 
Pa.  Super.  4,  1903;  (h)  it  is  error  to  refuse  to  answer  points  of  law 
which    are  material  to  issue  and  warranted  by  evidence:  Shaeffer  v. 
Landis,  1  S.  &  R.  449,  1815;  Powers  v.  McErran,  2  S.  &  R.  44,  1815; 
Hamilton  v.  Menor,  2  S.  &  R.  70, 1815;  Fisher  v.  Larick,  3  S.  &  R.  319,  - 
1817;  Vincent  v.  Huff,  4  S.  &  R.  298,  1818;  Humes  v.  McFarlane,  4  S. 

6  R.  427, 1818;  Bellas  v.  Hays,  5  S.  &  R,  427,  1819;  Simpson  v.  Wray, 

7  S.  &  R.  336,  1821;  Pedan  v.  Hopkins,  13  S.  &  R.  45,  1825;  Robeson 
v.  Gibbons,  2  Rawle,  45,  1829;  Bemus  v.  Howard,  3  Watts  255,  1834; 
Slaymaker  v.  St.  John,  5  Watts  27, 1836 ;  Carpenter  v.  Mayer,  5  Watts 

483,  1836;  Noble  v.  McClintock,  6  W.  &  S.  58,  1843;  Hood  v.  Hood, 
2  Grant  229,  1858;  Penna.  R.  R.  Co.  v.  Zebe,  33  Pa.  318,  1859;  Dime 
Sav.  Inst.  v.  Bank,  61  Pa.  391,  1869 ;  Tenbrooke  v.  Jahke,  77  Pa.  392, 
1875 ;  Penna.  Co.  v.  Toomey,  91  Pa.  256,  1879 ;  Spangler  v.  Spangler, 
122  Pa.  358,  1889;  New  York  etc.,  R.  R.  Co.  v.  Enches,  127  Pa.  316, 

357 


REVIEW  ON  APPEAL. 


§228  (22)  (i)-(n)  Requests  for  Instructions  [Chap.  15, 

1889;  Sommer  v.  Gilmore,  160  Pa.  129,  1894;  Central  Trust  Co.  v. 
White,  206  Pa.  611,  1903;  (i)  but  if  a  point  be  a  mere  repetition  of 
one  already  answered,  it  is  enough  to  refer  to  answer  already  given: 
Munderbach  v.  Lutz,  14  S.  &  R.  220,  1826;  Geiger  v.  Welsh,  1  Rawle 
349,  1829;  (j)  but  refusal  of  point  which  should  have  been  affirmed 
is  harmless  where  two  other  points  containing  same  matter  have  been 
affirmed :  Bracken  v.  R.  R.,  222  Pa.  410,  1909 ;  (k)  points  should  be  so 
answered  as  to  place  before  jury  exact  question  to  be  decided:  Gra- 
ham v.  Moore,  4  S.  &  R.  467, 1818;  Irish  v.  Smith,  8  S.  &  R.  573, 1822; 
Selin  v.  Snyder,  11  S.  &  R.  319,  1824;  Hughes  v.  Boyer,  9  Watts  556, 
1840;  Utt  v.  Long,  6  W.  &  S.  174,  1843;  Lloyd  v.  Carter,  17  Pa.  216, 
1851;  Leech  v.  Leech,  21  Pa.  67,  1853;  McKnight  v.  Ratcliff,  44  Pa. 
165,  1862;  Hays  v.  Paul,  51  Pa.  134,  1865;  Killion  v.  Power,  51  Pa. 
429,  1866;  Rider  v.  Maul,  70  Pa.  15,  1871;  Keating  v.  Orne,  77  Pa. 
89,  1874;  Penna.  R.  R.  Co.  v.  Werner,  89  Pa.  59,  1879;  Yardley  v. 
Cuthbertson,  108  Pa.  395,  1885 ;  Sidney  Sch.  Furniture  Co.  v.  School 
Dist.,  130  Pa.  76,  1889;  McCoombs  v.  Railroad  Co.,  130  Pa.  182,  1889; 
Bentley  v.  Cranmer,  137  Pa.  244, 1890 ;  Kaiser  v.  Flaccus,  138  Pa.  332, 
1890;  Kramer  v.  Winslow,  154  Pa.  637,  1893;  Malone  v.  Railroad  Co., 
157  Pa.  430,  1893 ;  Wahl  v.  R.  R.  Co.,  158  Pa.  257,  1893 ;  Heitzenreither 
v.  Bank,  4  Pa.  Super.  524, 1897;  Stuart  v.  Line,  11  Pa.  Super.  345,  1899; 
Hamilton  v.  Pitts.,  etc.,  R.  R.  Co.,  190  Pa.  51,  1899;  (1)  if  facts  are 
included  in  point,  they  should  be  stated  hypothetically :  Sweitzer  v. 
Hummel,  3  S.  &  R.  228,  1817;  Penna.  R.  R.  v.  McTighe,  46  Pa.  316, 
1863 ;  Riegel  v.  Wilson,  60  Pa.  388,  1869 ;  Bartley  v.  Williams,  66  Pa. 
329,  1870;  (m)  where  hypothetical  point  asks  for  instructions  on 
legal  effect  of  evidence,  court  should  instruct  jury  as  to  law  if  they 
should  find  facts  as  suggested:  Ham  v.  Canal  Co.,  142  Pa.  617,  1891; 
(n)  court  is  not  bound  to  answer  points  which  assume  facts  which  are 
disputed:  Zerger  v.  Sailer,  6  Binn.  24,  1813;  White  v.  Kyle,  1  S.  &  R. 
515, 1815;  Hamilton  v.  Menor,  2  S.  &  R.  70,  1815;  Greber  v.  Kleckner, 
2  Pa.  289,  1845;  Cullum  v.  Wagstaff,  48  Pa.  300,  1865;  Penna.  R.  R.  v. 
Bock,  93  Pa.  427,  1880;  Payne  v.  Reese,  100  Pa.  301,  1882;  Smith  v. 
Bank,  104  Pa.  518,  1883;  Com.  v.  Buccieri,  153  Pa.  535,  1893;  Keeler 
v.  Schott,  1  Pa.  Super.  458,  1896;  Beringer  v.  Lutz,  179  Pa.  1,  1897; 
Brothers  v.  Mitchell,  157  Pa.  484,  1893;  Jacoby  v.  Ins.  Co.,  10  Pa. 
Super.  366,  1899;  Braden  v.  Cook,  18  Pa.  Super.  156,  1901;  Welliver 
v.  Canal  Co.,  23  Pa.  Super.  79, 1903 ;  Maus  v.  Township,  24  Pa.  Super. 
624,  1904;  Karl  v.  Juniata  Co.,  206  Pa.  633,  1903;  McHenry  v.  Buli- 

358 


REVIEW  ON  APPEAL. 


§§228-31]  Requests  for  Instructions  §228  (22)  (o)-(x) 

fant,  207  Pa.  15,  1903;  Baker  v.  Moore,  29  Pa.  Super.  301, 1905;  Wal- 
lace v.  Henderson,  211  Pa.  142,  1905;  Com.  v.  Danz,  211  Pa.  507,  1905; 
(o)  if  point  be  substantially  affirmed  or  fairly  answered,  and  answer 
is  as  favorable  as  request,  it  is  not  reversible  error  that  answer  might 
have  been  more  fully  stated:  Fisher  v.  Larick,  7  S.  &  R.  99,  1821; 
Hubley  v.  Vanhorne,  7  S.  &  R.  185, 1821 ;  Munderbach  v.  Lutz,  14  S.  & 
R.  220,  1826;  Bitzer  v.  Hahn,  14  S.  &  R.  232,  1826;  Levers  v.  VanBus- 
kirk,  4  Pa.  309,  1846;  Fisher  v.  Filbert,  6  Pa.  61,  1847;  Woodwell  v. 
Brown,  44  Pa.  121,  1862;  Johnston  v.  Com.  85  Pa.  54,  1877;  Auburn 
Bolt  Works  v.  Shultz,  143  Pa.  256,  1891;  (p)  an  insufficient  or  erron- 
eous answer  is  not  reversible  error  if  point  is  not  raised  by  evidence 
or  in  the  pleadings:  Sweitzer  v.  Hummel,  3  S.  &  R.  228,  1817;  Mun- 
derbach v.  Lutz,  14  S.  &  R.  220,  1826;  Strawbridge  v.  Cartledge,  7  W. 
&  S.  394,  1844;  Burd  v.  McGregor,  2  Grant  353,  1856;  Williams  v. 
Williams,  34  Pa.  312,  1859;  North  Penna.  R.  R.  v.  Kirk,  90  Pa.  15, 
1879;  Clarkson  v.  Thorn,  2  Penny.  491,  1882;  Heffner  v.  Chambers, 
121  Pa.  84,  1888;  (q)  court  is  not  bound  to  answer  points  in  words 
of  the  proposition:  Munderbach  v.  Lutz,  14  S.  &  R.  220,  1826;  Geiger 
v.  Welch,  1  Rawle  349,  1829;  Carey  v.  Buckley,  192  Pa.  276,  1899; 
Jones  v.  Greenfield,  25  Pa.  Super.  315,  1894;  (r)  the  matter,  and  not 
the  manner,  of  answering  is  subject  of  error:  Hood  v.  Hood,  25  Pa. 
417,  1855;  Barnett  v.  Reed,  51  Pa.  190,  1866;  Everhart  v.  Searle,  71 
Pa.  256,  1872;  (s)  when  binding  instructions  are  given,  refusal  to 
answer  points  is  not  error :  Myers  v.  Ins.  Co.,  26  Pa.  192,  1856 ;  Myers 
v.  Coal  Company,  126  Pa.  582,  1889;  Helzer  v.  Helzer,  187  Pa. 
243,  1898;  Central  Trust  Company  v.  White,  206  Pa.  611, 
1903;  (t)  several  points  relating  to  same  matter  may  be  answered 
collectively;  Coates  v.  Roberts,  4  Rawle  100,  1833;  McCoy  v.  Hance, 
28  Pa.  149,  1857;  (u)  failure  to  answer  every  request  for  findings  of 
fact  is  not  reversible  error  if  facts  are  not  material:  Myersdale,  etc., 
Ry.  v.  Ry.,  219  Pa.  558,  1908;  (v)  if  law  be  correctly  given  to  jury,  it 
is  immaterial  that  wrong  reason  was  given  in  charge :  see  note  (20) 
(u),  and  note  (2)  (h),  this  section;  (w)  affirmance  of  points  may  be 
qualified  by  cautionary  statements  of  law:  Yardley  v.  Cuthbertson, 
108  Pa.  395, 1885;  Hull  v.  R.  R.,  1  Pa.  Super.  651, 1896;  Snyder  v.  Loy, 
4  Pa.  Super.  201,  1897;  Oehm  v.  Gas  Co.,  10  Pa.  Super.  593,  1899;  (x) 
if  point  is  affirmed  without  qualification,  it  is  error  to  assume  facts  in 
answer:  McCarty  v.  Gordon,  4  Whar.  321,  1839;  Citizens  Ry.  v. 
Ketcham,  122  Pa.  228,  1888;  (y)  it  is  not  error  to  refuse  point  con- 

359 


REVIEW  ON  APPEAL. 


§228  (22)  (y)-(j2)  Requests  for  Instructions  [Chap.  15, 

taining  several  distinct  propositions :  Gorgas  v.  R.  R.,  144  Pa.  1,  1891 ; 
Rudy  v.  Myton,  19  Pa.  Super.  312,  1902;  Seifred  v.  R.  R.,  206  Pa. 
399,  1903;  Schweitzer  v.  Williams,  43  Pa.  Super.  202,  1910;  (z)  or 
points  which  lack  particularity:  Cox  v.  Wilson,  25  Pa.  Super.  635, 
1904;  (a2)  it  is  proper  practice  to  refuse  to  read  to  jury  points  which 
are  refused :  Hommel  v.  Lewis,  104  Pa.  456,  1883 ;  Kroegher  v.  McCon- 
way,  Torley  Co.,  149  Pa.  444,  1892;  Com.  v.  Clark,  3  Pa.  Super.  141, 
1896 ;  Walbert  v.  Trexler,  156  Pa.  112,  1893 ;  Woeckner  v.  Motor  Co., 
187  Pa.  206,  1898;  Com.  v.  Swallow,  8  Pa.  Super.  539,  1898;  Carey 
v.  Buckley,  192  Pa.  276,  1899;  (b2)  under  Act  March  24,  1877,  P.  L. 
38,  3  Purd.  3357,  pi.  3,  (§148,  above),  points  answered  in  writing  in 
negative  need  not  be  read  to  jury:  Clay  v.  R.  R.,  221  Pa.  439,  1908; 
(c2)  appellant  cannot  complain  of  omission  to  answer  point  which 
court  would  have  been  obliged  to  answer  against  him:  Werkheiser  v. 
Werkheiser,  6  W.  &  S.  184,  1843;  Deal  v.  Bogue,  20  Pa.  228,  1852; 
Childs  v.  Digby,  24  Pa.  23,  1855;  Hill  v.  Canfield,  56  Pa.  454,  1868; 
Winsor  v.  Maddock,  64  Pa.  231,  1870;  Com.  v.  Buccieri,  153  Pa.  535, 
1893;  (d2)  or  of  omission  or  mistake  in  answering  point  which  ver- 
dict has  rendered  immaterial:  Munderbach  v.  Lutz,  14  S.  &  R.  220, 
1826;  Payne  v.  Reese,  100  Pa.  301,  1882;  Shaffer  v.  Iron  Co.,  5  Sad. 
104,  1887;  Com.  v.  Vanchaski,  42  Pa.  Super.  294,  1910;  Jackson  v.  R. 
R.,  228  Pa.  566,  1910;  (see  notes  (20)  (i)  and  (25)  (1),  this  sec- 
tion) ;  (e2)  court  may  decline  to  answer  irrelevant  points :  Covert  v. 
Irwin,  3  S.  &  R.  283, 1817;  Kean  v.  Franklin,  5  S.  &  R.  147, 1819;  Fox 
v.  Academy,  6  W.  &  S.  353, 1843 ;  Garrett  v.  Jackson,  20  Pa.  331, 1853 ; 
Hilskell  v.  Bank,  89  Pa.  155,  1879 ;  Lebanon  Ins.  Co.  v.  Losch,  109  Pa. 
100,  1885 ;  Heffner  v.  Chambers,  121  Pa.  84,  1888 ;  Maus  v.  Township, 
24  Pa.  Super.  624,  1904;  Fearon  v.  Little,  227  Pa.  348,  1910;  (f2)  or 
points  which  evidence  does  not  sustain:  Urket  v.  Loryell,  5  W.  &  S. 
60,  1842;  Altoona  v.  Lotz,  114  Pa.  238,  1886;  Kramer  v.  Reed,  7  Sad. 
613,  1888;  Carman  v.  R.  R.,  195  Pa.  440,  1900;  Karl  v.  County,  206 
Pa.  633,  1903;  Maus  v.  Township,  24  Pa.  Super.  624,  1904;  Fisher 
v.  R.  R.,  227  Pa.  635,  1910;  (g2)  or  which  draw  doubtful  inferences: 
McNeil  Co.  v.  Nimick  &  Co.,  194  Pa.  187,  1900;  (h2)  or  which  are  not 
offered  at  proper  time  or  in  proper  manner:  Kinley  v.  Hill,  4  W.  & 
S.,  426,  1842;  Haines  v.  Stauffer,  13  Pa.  541,  1850;  (12)  or  which  asks 
instructions  as  to  object  of  law  and  not  what  is  the  law:  Lincoln  v. 
Wright,  23  Pa.  76,  1854;  (J2)  or  which  asks  instructions  on  defects 
in  pleadings:  Brittain  v.  Bank,  5  W.  &  S.  87,  1842;  Haldeman  v. 

360 


REVIEW  ON  APPEAL. 


§§228-31]  Requests  for  Instructions  §  228  (22)  (j)-(w2) 

Martin,  10  Pa.  369,  1849;  Smith  v.  Latour,  18  Pa.  243,  1852;  (k2) 
or  weight  of  evidence:  Clark  v.  Partridge,  2  Pa.  13,  1845;  Lorain  v. 
Hall,  33  Pa.  270,  1859;  (12)  where  point  conflicts  with  Supreme  Court 
decision,  it  is  not  error  for  court  to  read  to  jury  part  of  Supreme 
Court  opinion:  Yardley  v.  Cuthbertson,  108  Pa.  395,  1885;  Thomas  v. 
Butler,  24  Pa.  Super.  305,  1904;  (m2)  refusal  to  answer  has  been  held 
equivalent  to  negative  answer:  Bartle  v.  Saunders,  2  Grant,  199, 1858; 
(n2)  and  appellate  court  will  assume  jury  would  have  found  facts 
as  set  forth  in  point  refused:  King  v.  Thompson,  87  Pa.  365,  1878; 
(o2)  if  no  reason  for  refusal  be  given,  it  will  be  presumed  that  it  was 
because  of  error  in  law  and  not  because  there  was  no  evidence  to 
support  it:  Short  v.  Messenger,  126  Pa.  637,  1889;  (p2)  if  charge  as 
to  legal  effect  of  evidence  is  desired,  it  must  be  embodied  in  point: 
Garrett  v.  Jackson,  20  Pa.  331,  1853;  Lancaster  Co.  Bank  v.  Albright, 
21  Pa.  228,  1853;  Dingee  v.  Jackson,  23  Pa.  176,  1854;  (q2)  appellate 
court  will  not  reverse  where  appellant  was  not  prejudiced  by  improper 
reservation  of  a  point :  Knerr  v.  Hoffman,  65  Pa.  126,  1870 ;  Erie  City 
Iron  Works  v.  Barber,  106  Pa.  125,  1884;  (r2)  or  because  points  were 
not  specifically  read  where  only  one  which  could  have  been  affirmed 
was  fully  covered  in  general  charge :  Com.  v.  Clark,  3  Pa.  Super.  141, 
1896;  (s2)  or  for  inconsistency  between  charge  and  answers  to 
points  where  appellant  was  not  injured  thereby:  Rondinella  v.  Ins. 
Co.,  24  Pa.  Super.  293,  1903;  (t2)  points  may  be  submitted  by  com- 
monwealth in  a  criminal  case,  though  it  is  unusual  practice,  and  when 
so  submitted  they  may  be  answered :  Murry  v.  Com.,  79  Pa.  311,  1875 ; 
Root  v.  Com.,  98  Pa.  170,  1881;  (n2)  where  court  fails  to  charge  on 
matter  which  counsel  deem  essential,  attention  should  be  called  to  it 
before  jury  retire  so  that  omission  may  be  corrected:  Com.  v.  Zappe, 
153  Pa.  498,  1893;  Kehoe  v.  Traction  Co.,  187  Pa.  474,  1898;  (see  also 
note  (20)  (r),  this  section) ;  (v2)  the  party  presenting  a  point  which 
assumes  certain  question  to  be  before  jury,  cannot  afterward  object 
that  there  was  no  evidence  in  case  justifying  such  submission:  Au- 
burn Works  v.  Shultz,  143  Pa.  256,  1891;  (w2)  when  point  has  been 
substantially  affirmed,  party  presenting  it  cannot  dispute  it:  Hubley 
r.  Vanhorne,  7  S.  &  R.  185, 1821;  Williams  v.  Carr,  1  Rawle  420, 1829; 
Benson  v.  Maxwell,  105  Pa.  274,  1884. 

(23)  —  Binding  Instructions,  (a)  Where  binding  instructions  have 
been  given  below,  appellate  court  will  not  pass  upon  credi- 
bility of  witnesses  but  will  assume  all  evidence  as  true,  and 

361 


REVIEW  ON  APPEAL. 


§228  (23)  (a)-(e)  Binding  Instructions  [Chap.  15, 

also  every  fact  which  may  fairly  be  inferred  from  such  evi- 
dence: Codding  v.  Wood,  112  Penna.  St.  371,  1886;  Bigley  v. 
Jones,  114  Pa.  510,  1886;  (b)  such  instructions  will  be  affirmed 
only  when  facts  are  established  beyond  a  doubt  and  the  conclu- 
sions to  which  they  lead  are  clear  and  unquestionable:  Menner  v. 
Canal  Co.,  7  Pa.  Super.  135,  1898;  Eardley  v.  Keeling,  10  Pa.  Super. 
339,  1899;  Hedricks  v.  Township,  16  Pa.  Super.  508,  1901;  (c)  such 
instructions  are  proper  where  there  are  no  facts  in  dispute :  Koons  v. 
Steele,  19  Pa.  203,  1852;  Webb  v.  Mears,  45  Pa.  222,  1863;  Eister  v. 
Paul,  54  Pa.  196,  1866;  Hoag  v.  R.  R.,  85  Pa.  293,  1877;  Gardner  v. 
McLallen,  4  W.  N.  C.  435,  1877;  Krause  v.  Com.,  93  Pa.  418,  1880; 
Angier  v.  Eaton  Co.,  98  Pa.  594,  1881 ;  Camden,  etc.,  Ry.  v.  Hoosey,  99 
Pa.  492,  1882;  Alcorn  v.  Phila.,  112  Pa.  494,  1886;  Wannamaker  v. 
Burke,  111  Pa.  423, 1886;  Barnes  v.  Snowdon,  119  Pa.  53, 1888;  McFad- 
den  v.  Rausch,  119  Pa.  507, 1888;  McFall  v.  Ice  Co.,  123  Pa.  253,  1888; 
Devlin  v.  Snellenberg,  132  Pa.  186,  1890 ;  Stoever  v.  Walmer,  140  Pa. 
590,  1891;  Com.  v.  R.  R.,  132  Pa.  591,  1899;  Congle  v.  McKee,  151  Pa. 
602,  1892;  Swanson  v.  Crandall,  2  Pa.  Super.  85,  1896;  Hazlett  v. 
Bragdon,  7  Pa.  Super.  581,  1898;  Continental  Trust  Co.  v.  Devlin, 
209  Pa.  380,  1904;  Merchants  Bank  v.  Gardner,  31  Pa.  Super.  143, 
1906;  (d)  or  where,  admitting  every  fact  and  circumstance  offered  by 
plaintiff,  he  has  failed  to  make  out  his  case:  Weidler  v.  Bank,  11  S. 
&  R.  134,  1824;  Malson  v.  Fry,  1  Watts  433,  1833;  Newbaker  v. 
Aldricks,  5  Watts  183,  1836;  McCracken  v.  Roberts,  19  Pa.  390, 
1852;  De  France  v.  De  France,  34  Penna  St.  385,  1859;  Eister  v. 
Paul,  54  Pa.  196,  1866;  Lynch  v.  City,  151  Pa.  380, 
1892;  Com.  v.  Harris,  168  Pa.  619,  1895;  Gropp  v.  Steel  Co..  4  Pa. 
Super.  621,  1897;  Maynard  v.  Bank,  20  W.  N.  C.  272,  1887  (see  also 
cases  under  (e),  below) ;  (e)  or  where  there  is  no  evidence  from 
which  jury  can  find  for  party  on  whom  burden  of  proof  lies :  Spangler 
v.  Hummer,  3  P.  &  W.  370,  1832 ;  Whitehill  v.  Wilson,  3  P.  &  W.  405, 
1832;  Stouffer  v.  Latshaw,  2  Watts  165,  1834;  DuBois  v.  Lord,  5 
Watts  49,  1836;  Newbaker  v.  Alricks,  5  Watts  183,  1836;  McClurg 
v.  Willard,  5  Watts  275,  1836;  Hannay  v.  Stewart,  6  Watts  487,  1837; 
Huling  v.  Drexell,  7  Watts  126,  1838;  Switland  v.  Holgate,  8  Watts 
385,  1839 ;  Prescott  v.  Ins.  Co.,  1  Whar.  399,  1836 ;  McCarty  v.  Gordon, 
4  Whar.  321,  1839;  Gilchrist  v.  Rogers,  6  W.  &  S.  488,  1843;  Evans  v. 
Mengel,  1  Pa.  68,  1845;  Junior  Engine  Co.  v.  Douglas,  2  Penny.  'iS, 
1845;  Bradley  v.  Grosh,  8  Pa.  45,  1848;  Moore  v.  Miller,  8  Pa.  272, 

362 


REVIF.W  ON  APPEAL. 


§§228-31]  Binding  Instructions  §  228  (23)  (e)-(g) 

1848;  Snyder  v.  Wilt,  15  Pa.  59, 1850;  Jones  v.  Wood,  16  Pa.  25, 1851; 
Sartwell  v.  Wilcox,  20  Pa.  117, 1852;  Kidder  v.  Boom  Co.,  24  Pa.  193, 
1855;  Kirkpatrick  v.  Vanhorn,  32  Pa.  131,  1858;  Cook  v.  Mackrell, 
70  Pa.  12,  1858;  Tobin  v.  Gregg,  34  Pa.  446,  1859;  Schilling  v.  Durst, 
42  Pa.  126, 1862;  Eckert  v.  Flowry,  43  Pa.  46,  1862;  Bogle  v.  Kreitzer, 
46  Pa.  465,  1864;  Herdic  v.  Bilger,  47  Pa.  60,  1864;  Riegel  v.  Wilson, 
60  Pa.  388,  1869;  West  Branch  Ins.  Co.  v.  Macklin,  66  Pa.  34,  1870; 
Penna.  R.  R.  v.  Beale,  73  Pa.  504,  1873;  Fretton  v.  Karcher,  77  Pa. 
423,  1875;  Elkins  v.  McKean,  79  Pa.  493,  1875;  Ege  v.  Medlar,  82  Pa. 
86,  1876;  Cauffman  v.  Long,  82  Pa.  72,  1876;  Hyatt  v.  Johnston,  91 
Pa.  196,  1879;  Wingerd  v.  Fallen,  95  Pa.  184,  1880;  Calvert  v.  Good, 
95  Pa.  65,  1880;  Louchheim  v.  Henzey,  9  W.  N.  C.  571,  1881;  Angier 
v.  Eaton  Co.,  11  W.  N.  C.  146, 1881 ;  Morton  v.  Weaver,  99  Pa.  51, 1881 ; 
Egbert  v.  Payne,  99  Pa.  239,  1881 ;  Northern  Cent.  R.  R.  Co.  v.  Husson, 
101  Pa.  1,  1882 ;  Wilson  v.  Mitchell,  101  Pa.  495,  1882 ;  Selser  v.  Rob- 
erts, 105  Pa.  242,  1884;  First  Nat.  Bank  v.  Bank,  114  Pa.  1,  1886; 
Chartiers  Gas  Co.  v.  Lynch,  118  Pa.  362,  1888;  McFadden  v.  Rausch, 
119  Pa.  507,  1888;  Phila.  &  R.  R.  R.  Co.  v.  Alvord,  128  Pa.  42,  1889; 
Jones  v.  Pierce,  134  Pa.  533,  1890;  Com.  v.  Ruddle,  142  Pa.  144,  1891; 
Kittanning  Twp.  v.  Township,  146  Pa.  108,  1892;  Lynch  v.  Erie,  151 
Pa.  380,  1892;  Bellows  v.  Railroad  Co.,  157  Pa.  51,  1893;  McHugh  v. 
Schlosser,  159  Pa.  480,  1894;  Horn  v.  Hutchinson,  163  Pa.  435,  1894; 
Brooks  v.  Railroad  Co.,  2  Pa.  Super.  581,  1896;  Wells  v.  Ins.  Co.,  191 
Pa.  207,  1899;  Lonzer  v.  R.  R.,  196  Pa.  610,  1900;  Ruffner  v.  Wolfe, 
14  Pa.  Super.  513,  1900;  Devlin  v.  Light  Co.,  198  Pa.  585,  1901;  Heh 
v.  Gas  Co.,  201  Pa.  443,  1902;  (f)  or  where  evidence  on  one  side  is  a 
mere  scintilla  and  that  against  it  so  overwhelming  that  court  would 
not  sustain  verdict  against  it :  Graff  v.  R.  R.,  31  Pa.  489,  1858 ;  Eister 
v.  Paul,  54  Pa.  196, 1867;  Elliott  v.  Ins.  Co.,  66  Pa.  22, 1870;  Cunning- 
ham v.  Smith,  70  Pa.  450,  1872;  Raby  v.  Cell,  85  Pa.  1877;  Angier 
v.  Eaton,  11  W.  N.  C.  146, 1881;  Wilson  v.  Mitchell,  101  Pa.  495, 1882; 
Ball  v.  Campbell,  134  Pa,  602,  1890;  Ford  v.  Anderson,  139  Pa.  261, 
1891;  Holland  v.  Kindregan,  155  Pa.  156,  1893;  Horn  v.  Hutchinson, 
163  Pa.  435,  1894;  McMurtrie  v.  Black,  189  Pa.  66,  1897;  Lonzer  v. 
R.  R.,  196  Pa.  610,  1900;  Cromley  v.  R.  R.,  211  Pa.  429,  1905  (see  also 
(i),  below) ;  (g)  but  where  there  is  some  evidence,  however  slight, 
from  which  an  inference  may  be  drawn,  it  is  not  reversible  error  to 
submit  case  to  jury;  Pittsburg  Bank  v.  Whitehead,  10  Watts  397, 
1840;  Fitzwater  v.  Stout,  16  Pa,  22,  1851;  Graham  v.  Smith,  25  Pa. 

363 


REVIEW  ON  APPEAL. 


§228  (23)  (g)-(h)  Binding  Instructions  [Chap.  15, 

323,  1855;  Noel  v.  White,  37  Pa.  514,  1861;  Cathcart  v.  Com.,  37  Pa. 
108,  1861;  Wenrich  v.  Heffner,  38  Pa.  207,  1861;  North  Penn.  R.  R.  v. 
Kirk,  90  Pa.  15,  1879;  Pittsburg  Railway  Co.  v.  Stokes,  4  W.  N.  C. 
550,  1878 ;  Simes  v.  Blair,  5  W.  N.  C.  235,  1878 ;  Swartz  v.  Hauser,  10 
W.  N.  C.  434, 1881;  Payne  v.  Reese,  100  Pa.  301,  1882;  Lee  v.  Newell, 
107  Pa.  283,  1884;  Sidney  Furniture  Co.  v.  School  Dist.,  122  Pa.  494, 
1888;  Powell  v.  Derickson,  178  Pa.  612,  1897;  Dixon  v.  Daub,  17  Pa. 
Super.  168,  1901;  Bailey  v.  Coal  Co.,  20  Pa.  Super.  186,  1902;  Lamb  v. 
Prettyman,  33  Pa.  Super.  190, 1907;  see  also  (h),  below;  (h)  it  is  error 
to  give  binding  instructions  where  evidence  is  uncertain,  or  contra- 
dictory, or  where  different  inferences  may  be  drawn  therefrom:  Wil- 
marth  v.  Mountford,  8  S.  &  R.  124,  1822;  Newbold  v.  Wright,  4  Rawle 
195,  1832;  Harger  v.  McMains,  4  Watts  418,  1835;  Fish  v.  Brown,  5 
Watts  441, 1836;  Moore  v.  Miller,  8  Pa.  272,  1848;  Huston  v.  Barstow, 
19  Pa.  169,  1852;  Sellers  v.  Jones,  22  Pa.  423,  1854;  Mclldowny  v. 
Williams,  28  Pa.  492,  1857;  Williams  v.  Bentley,  29  Pa.  272,  1857; 
Wenrich  v.  Heffner,  38  Pa.  207,  1861;  Deford  v.  Reynolds,  36  Pa.  325, 
1861;  Brown  v.  Railroad  Co.,  39  L.  I.  179,  1861;  Phila.  Co.  v.  Hogan, 
47  Pa.  244,  1864;  Mohney  v.  Evans,  51  Pa.  80,  1865;  Hill  v.  Canfield, 
56  Pa.  454,  1868 ;  Madara  v.  Eversole,  62  Pa.  160,  1869 ;  Reel  v.  Elder, 
62  Pa.  308,  1869;  Bergner  v.  Thompson,  74  Pa.  168,  1873;  Crissey  v. 
Ry.,  75  Pa.  83,  1873;  Tenbrooke  v.  Jahke,  77  Pa.  392,  1875;  Rice  v. 
Olin,  79  Pa.  391, 1875;  North  Penna.  R.  R.  Co.  v.  Kirk,  90  Pa.  15, 1879; 
Oram  v.  Rothermal,  98  Pa.  300,  1881 ;  Murphy  v.  Crossan,  98  Pa.  495, 
1881;  Egbert  v.  Payne,  99  Pa.  239,  1881;  Rice  v.  Com.,  100  Pa.  28, 
1882;  Abraham  v.  Mitchell,  112  Pa.  230,  1886;  Patterson  v.  Dushane, 
115  Pa.  334,  1887;  Cover  v.  Manaway,  115  Pa.  338,  1886;  Spear  v. 
R.  R.,  119  Pa.  61,  1888;  Lombard,  etc.,  Ry.  Co.  v.  Christian,  124  Pa. 
114,  1889;  Springfield  Ins.  Co.  v.  Brown,  128  Pa.  392,  1889;  Readdy 
v.  Borough,  137  Pa.  92,  1890;  Kelly  v.  McGehee,  137  Pa.  443,  1890; 
American  Tel.  Co.  v.  Lennig,  139  Pa.  594,  1891;  Irwin  v.  Irwin,  142 
Pa.  271,  1891;  Stoddart  v.  Price,  143  Pa.  537,  1891;  Cougle  v.  McKee, 
151  Pa.  602,  1892;  Lehigh  Coal  Co.  v.  Evans,  176  Pa.  28,  1896;  Baker 
v.  Hagey,  177  Pa.  128,  1896;  Snyder  v.  Steinmetz,  6  Pa.  Super.  341, 
1898;  Rothchilds  v.  McLaughlin,  6  Pa.  Super.  347, 1898;  Coble  v.  Zook, 
6  Pa.  Super.  597, 1898;  Fry  v.  Flick,  10  Pa.  Super.  362,  1899;  Oehm  v. 
Gas  Co.,  10  Pa.  Super.  593,  1899;  Harlow  v.  Homestead  Borough,  194 
Pa.  57,  1899;  Vandevort  v.  Wheeling  Iron  Co.,  194  Pa.  118,  1899; 
Prindle  v.  Kountz,  15  Pa.  Super.  258,  1900 ;  Claflin  v.  Querns,  15  Pa. 

364 


REVIEW  ON  APPEAL. 


§§228-31]  Binding  Instructions  §  228  (23)  (h)-(m) 

Super.  464,  1900;  Dixon  v.  Daub,  17  Pa.  Super.  168,  1901;  Heh  v. 
Gas  Co.,  201  Pa.  443,  1901;  Woolman  v.  Ice  Co.,  18  Pa.  Super.  596, 
1902;  Bryne  v.  R.  R.,  19  Pa.  Super.  531,  1902;  Scholtz  v.  Scholtz,  22 
Pa.  Super.  Ill,  1903;  Rondinella  v.  Ins.  Co.,  24  Pa.  Super.  293,  1904; 
Thomas  v.  Law,  25  Pa.  Super.  19,  1904;  Rider-Ericsson  Engine  Co.  v. 
Fredericks,  25  Pa.  Super.  72,  1904;  Kelton  v.  Fife,  26  Pa.  Super. 
603,  1904;  Bradford  Clark  Co.  v.  R.  R.,  27  Pa.  Super.  251,  1905; 
Kitler  v.  Ry.,  27  Pa.  Super.  602,  1905;  Dinan  v.  Supreme  Council,  210 
Pa.  456,  1905;  Cromley  v.  R.  R.  Co.,  211  Pa.  329,  1905;  (i)  or  where 
evidence  to  support  plaintiffs'  claim  is  more  than  a  mere  scin- 
tilla: Repsher  v.  Wattson,  17  Pa.  365,  1851;  Holden  v.  Winslow, 
18  Pa.  160,  1851;  Farmers'  Ins.  Co.  v.  Bair,  82  Pa.  33,  1876;  Egbert  v. 
Payne,  99  Pa.  239,  1881;  Snyder  v.  Berger,  18  W.  N.  C.  490,  1887; 
Hineman  v.  Matthews,  138  Pa.  204, 1890;  (see  (f)  and  (g),  above) ;  (j) 
or  where  a  party  in  whose  favor  such  instructions  are  asked  has  failed 
to  make  out  every  point  of  his  case:  Schrimpton  v.  Bertolet,  155  Pa. 
638,  1893;  (k)  where  testimony  is  oral,  question  of  credibility  of  wit- 
nesses is  sufficient  to  take  case  to  jury:  Madara  v.  Eversole,  62  Pa. 
160,  1869 ;  Baker  v.  Irish,  172  Pa.  528,  1895 ;  Lehigh  Coal  Co.  v.  Evans, 
176  Pa.  28,  1896;  Platz  v.  Township,  178  Pa.  601,  1897;  Harlow  v. 
Homestead  Boro.,  194  Pa.  57,  1899;  Arnold  v.  Ins.  Co.,  22  Pa.  Super. 
575,  1903;  Barnett  v.  Becker,  25  Pa.  Super.  22,  1904;  Edwards  v. 
Woodruff,  25  Pa.  Super.  575,  1904;  Colonial  Trust  Co.  v.  Getz,  28  Pa. 
Super.  619,  1905;  Trexler  v.  Africa,  33  Pa.  Super.  395,  1907;  (1) 
binding  instructions  based  on  court's  interpretation  of  meaning  of 
words  used  in  oral  testimony  or  statement,  is  error:  Sidwell  v.  Evans, 
1  P.  &  W.  383,  1830;  Simpson  v.  McBeth,  4  Watts  409,  1835;  McFar- 
land  v.  Newman,  9  Watts  55,  1839;  Brubaker  v.  Okeson,  36  Pa.  519, 
1860;  Maynes  v.  Atwater,  88  Pa.  496,  1879;  Forrest  v.  Nelson,  108  Pa. 
481,  1885;  Stoddart  v.  Price,  143  Pa.  537,  1891;  Fulton  v.  County, 
162  Pa.  294,  1893;  Speers  v.  Knarr,  4  Pa.  Super.  80,  1897;  Bixler  v. 
Lesh,  6  Pa.  Super.  459,  1898;  Pessano  v.  Eyre,  13  Pa.  Super.  157, 
1900;  Scottish  Asso.  v.  Trust  Co.,  195  Pa.  45,  1900;  Hawn  v.  Stoler, 
22  Pa.  Super.  307,  1903;  Saville  v.  Melley,  27  Pa.  Super.  69,  1905; 
(m)  construction  of  written  instrument  may  be  submitted  to  jury 
where  evidence  as  to  meaning  is  part  oral  and  part  written:  Harper 
v.  Kean,  11  S.  &  R.  280,  1824;  Colder  v.  Weaver,  7  Watts  466,  1838; 
Chambers  v.  Davis,  3  Whar.  40,  1837;  National  Dredging  Co.  v. 
Mundy,  155  Pa.  233, 1893;  Wetherill  v.  Erwin,  12  Pa.  Super.  259,  1899; 

365 


REVIEW  ON  APPEAL. 


§228  (23)  (n)-(24)  (c)  Binding  Instructions  [Chap.  15, 

(n)  errors  by  court  in  commenting  on  case,  answering  or  refusing  to 
answer  points  or  rulings  on  propriety  of  cross-examination  become 
harmless  when  binding  instructions  are  given:  Myers  v.  Ins.  Co.,  26 
Pa.  192,  1856;  Myers  v.  Coal  Co.,  126  Pa.  583,  1889;  Helzer  v.  Helzer, 
187  Pa.  243,  1898;  Central  Trust  Co.  v.  White,  206  Pa.  611,  1903; 
Williams  Typewriter  Co.  v.  Cleaver,  38  Pa.  Super.  376,  1909;  (o) 
where  binding  instructions  are  given,  court  should  state  briefly  rea- 
sons therefor:  Foote  v.  Product  Co.,  195  Pa.  190,  1900;  (p)  but  case 
will  not  be  reversed  for  wrong  reason  given:  Holmes  v.  Traction  Co., 
199  Pa.  229,  1901;  see  also  note  (2)  (h),  above;  (q)  where  binding 
instructions  have  been  refused,  judgment  against  verdict  cannot  be 
subsequently  entered  in  absence  of  exceptional  circumstances:  Dalmas 
v.  Kemble,  215  Pa.  410, 1906;  (see  also  §88,  note  (3)  ). 

(24)  Discretion  of  Lower  Court,  (a)  The  appellate  court  v^ill  not 
review  matters  of  practice  and  procedure  which  are  within  the  discre- 
tion of  the  lower  court  except  in  clear  cases  of  abuse  thereof.  A 
mere  difference  of  opinion  between  lower  and  appellate  court  does 
not  warrant  a  reversal.  The  following  matters  are  within  the  discre- 
tion of  the  lower  court  and  come  within  this  rule:  (b)  interpreta- 
tion and  enforcement  of  court's  own  rules:  Dubosq  v.  Guardians  of 
the  Poor,  1  Binn.  415,  1808;  Umberger  v.  Zearing,  8  S.  &  R.  163, 1822; 
Dailey  v.  Green,  15  Pa.  118,  1850 ;  North  Whitehall  Twp.,  47  Pa.  156, 
1864;  Wickersham  v.  Russell,  51  Pa.  71,  1865;  Frank  v.  Colhoun,  59 
Pa.  381,  1868;  Brennan's  Est.,  65  Pa.  16,  1870;  Peck's  Ap.,  11  W.  N. 
C.  31,  1881;  Gilmore  v.  Railroad  Co.,  104  Pa.  275,  1884;  McBeth  v. 
Newlin,  15  W.  N.  C.  129,  1884;  Collins  v.  Leafey,  124  Pa.  203,  1889; 
Morrison  v.  Nevin,  130  Pa.  344,  1889;  Bair  v.  Hubartt,  139  Pa.  96, 
1891;  Brennan  v.  Ins.  Co.,  148  Pa.  199,  1892;  McLane  v.  Hoffman,  164 
Pa.  491, 1894;  Higgins  Carpet  Co.  v.  Latimer,  165  Pa.  617, 1895;  Tren- 
ton Rubber  Co.  v.  Small,  3  Pa.  Super.  8, 1896;  Strouse  &  Co.  v.  Bard,  8 
Pa.  Super.  48,  1898;  Trescot  v.  Bank,  212  Pa.  47,  1905;  Dietrich  v. 
Lancaster,  212  Pa.  566,  1905;  Hartley  v.  Weideman,  28  Pa.  Super. 
50,  1905;  American  Steel  Co.  v.  Hotel  Co.,  226  Pa.  461,  1910; 
(c)  unless  rules  upon  which  rest  fundamental  rights  of  parties 
above  have  been  violated:  North  Whitehall  Twp.,  47  Pa.  156,  1864; 
Brennan's  Est.,  65  Pa.  16,  1870;  Gannon  v.  Fritz,  79  Pa.  303,  1876; 
McDermott  v.  Woods,  147  Pa.  356,  1892;  Schrimpton  v.  Bertolet,  155 
Pa.  638, 1893;  Todd  v.  Ins.  Co.,  9  Pa.  Super.  371,  1899;  (d)  or  where 
rule  applies  generally  throughout  state  and  it  has  been  construed 

366 


REVIEW  ON  APPEAL. 


§§  228-31]  Discretion  of  Lower  Court  §  228  (24)  (d)-(m) 

by  appellate  court  differently  from  lower  court  in  case  reviewed: 
Lancaster  County  Bank  v.  Henning,  171  Pa.  399,  1895;  (e)  allowing 
or  refusing  motions  nunc  pro  tune :  Ley  v.  Union  Canal,  5  Watts  104, 
1836;  Lance  v.  Bonnell,  105  Pa.  46,  1884;  Loomis  v.  Ross,  12  Pa. 
Super.  95,  1899;  Patterson  v.  Gallitzin  Asso.,  23  Pa.  Super.  54,  1903; 
Zeigler's  Petition,  207  Pa.  131,  1903;  Dunmore  Sch.  Dist.  v.  Wahlers, 
28  Pa.  Super.  39,  1905;  (f)  granting  or  refusing  amendments  to 
pleadings:  Ordroneaux  v.  Brady,  6  S.  &  R.  510,  1821;  Latshaw  v. 
Steiuman,  11  S.  &  R.  357,  1824;  Caldwell  v.  Thompson,  1  Rawle  370, 
1829;  Caldwell  v.  Remington,  2  Whar.  132,  1836;  Maus  v..Maus,  5 
Watts  315,  1836;  Davis  v.  Church,  1  W.  &  S.  240,  1841;  Hartman  v. 
Ins.  Co.,  21  Pa.  466,  1853;  Conroe  v.  Conroe,  47  Pa.  198,  1864; 
Michler  v.  Com.,  62  Pa.  55,  1869;  Kendig's  Ap.,  82  Pa.  68,  1876; 
Com.  v.  Scheuer,  115  Pa.  178, 1886;  Melvin  v.  Melvin,  130  Pa.  6, 1889; 
(g)  though  under  Act  March  21, 1806,  4  Sm.  L.  326, 1  Purd.  309,  pi.  1, 
amendments  are  matter  of  right  and  action  of  lower  court  will  be  re- 
viewed: Young  v.  Com.,  6  Binn.  88,  1813;  Newlin  v.  Palmer,  11  S.  & 
R.  98,  1824;  Proper  v.  Luce,  3  P.  &  W.  65,  1831;  (h)  granting  or  re- 
fusing leave  to  withdraw  plea:  Rush  v.  Cavenaugh,  2  Pa.  187,  1845; 
(i)  directing  who  should  be  made  plaintiff  in  issue  devisavit  vel  non: 
Palmer's  Est.,  132  Pa.  297,  1890;  (j)  refusing  judgment  for  want  of  V 
sufficient  affidavit  of  defence;  for  principles  governing  review  by  ap- 
pellate court,  see  §50;  (k)  advancing  or  retarding  proceedings  by 
orders  governing  trial  and  argument  lists,  etc.:  Barrington  v.  Bank, 
14  S.  &  R.  405,  1826;  Ellmaker  v.  Buckley,  16  S.  &  R.  72,  1827;  Phila. 
Library  v.  Ingham,  1  Whar.  72,  1835;  Withers  v.  Haines,  2  Pa.  435, 
1846;  Pringle  v.  Pringle,  59  Pa.  281,  1869;  Com.  v.  Ezell,  212  Pa.  293, 
1905;  (1)  allowance  of  bill  of  particulars:  Com.  v.  Powell,  23  Pa. 
Super.  370,  1903;  Com.  v.  Shoener,  25  Pa.  Super.  526,  1904;  (m) 
granting  or  refusing  continuance  or  discontinuance:  Porter  v.  Lee, 
16  Pa.  412,  1851;  Evans  v.  Clover,  1  Grant  164,  1854;  Duffs  Road,  66 
Pa.  459,  1871;  Lingenfelter  v.  Williams,  7  Sad.  70,  1887;  Bach  v. 
Burke,  141  Pa.  649,  1891;  Hall  v.  Vanderpool,  156  Pa.  152,  1893; 
DeGrote  v.  DeGrote,  175  Pa.  50,  1896;  Com.  v.  Dietrich,  7  Pa.  Super. 
515,  1898;  Com.  v.  Hazlett,  16  Pa.  Super.  534,  1901;  Rarick  v.  Mc- 
Manomon,  17  Pa.  Super.  154,  1901;  Dailey  v.  Iselin,  200  Pa.  200,  1901; 
Com.  v.  Scouton,  20  Pa.  Super.  503,  1902;  Hale  v.  Hale,  32  Pa. 
Super.  37,  1906;  Freeh  v.  Lewis,  32  Pa.  Super.  279,  1906;  Fisher  v. 
Penna.  Co.,  34  Pa.  Super.  500,  1907;  Vansciver  v.  Churchill,  35  Pa. 

367 


REVIEW  ON  APPEAL. 


§228  (24)  (m)-(a2)  Discretion  of  Lower  Court  [Chap.  15, 

Super.  212,  1907;  Com.  v.  Renzo,  216  Pa.  147,  1907;  Com.  v.  Delero, 
218  Pa.  487,  1907;  Kalin  v.  Wehrle,  36  Pa.  Super.  305, 1908;  Burns  v. 
R.  R.,  222  Pa.  406,  1909;  Gillman  v.  Ry.,  224  Pa.  267,  1909;  Cook  v. 
Motor  Co.,  225  Pa.  91,  1909;  Com.  v.  Femez,  226  Pa.  114,  1910;  (n) 
this  applies  to  continuance  for  amendment  on  trial:  Farmers  Ins.  Co. 
v.  Simmons,  30  Pa.  299,  1858;  Walthour  v.  Spangler,  31  Pa.  523,  1858; 
Sturzebecker  v.  Traction  Co.,  211  Pa.  156,  1905;  Roebling's  Sons  Co. 
v.   Constr.   Co.,  231  Pa.  261,  1911;    (o)    but  continuance  by  agree- 
ment in  pursuance  of  court  rule  is  a  matter  of  right:  Schrimpton  v. 
Bertolet,  155  Pa.  638,  1893;   (p)  refusal  to  grant  change  of  venue: 
Felts  v.  R.  R.,  160  Pa.  503,  1894;  Burns  v.  R.  R.,  222  Pa.  406,  1909; 
(q)  refusing  to  discharge  defendant  on  ground  that  he  was  arrested 
while  attending  as  witness:  Roberts  v.  Austin,  5  Whar.  313,  1839;  (r) 
refusal  to  quash  indictment:  Com.  v.  Hall,  23  Pa.  Super.  104,  1903; 
Com.  v.  Edmiston,  30  Pa.  Super.  54,  1906;   (s)   allowing  indictment 
without  previous  binding  over  or  commitment :  Com.  v.  Brown,  23  Pa. 
Super.  470,  1903;  (t)  refusing  to  quash  petition  in  contested  election 
case:  Moock  v.  Conrad,  155  Pa.  586,  1893;  (u)  quashing  writ  of  for- 
eign attachment:  Miller  v.  Sprecher,  2  Yeates  162,  1796;  Brown  v. 
Ridgway,  10  Pa.  42,  1848;  Lindsley  v.  Malone,  23  Pa.  24,  1854;  Hol- 
land v.  White,  120  Pa.  228,  1888;  First  National  Bank  v.  Crosby,  179 
Pa.  63,  1897;  Bellah  v.  Poole,  202  Pa.  71,  1902;   (v)  unless  record 
shows  judgment  to  be  void :  Robison  v.  Trench,  22  W.  N.  C.  143, 1888 ; 
(w)  or  refusal  to  set  aside  return  and  quash  writ :  Phila.  &  Read.  R.  R. 
v.  Snowden,  161  Pa.  201,  1894;   (x)  or  dissolving  attachment  under 
Act  March  17,  1869,  P.  L.  8:  Wetherald  v.  Shupe,  109  Pa.  389,  1885; 
Johnstone  v.  Menagh,  4  Pa.  Super.  154,  1897;  Slingluff  v.  Sisler,  193 
Pa.  264,  1899;  Ingram  v.  Grangers,  33  Pa.  Super.  316,  1907;  (y)  per- 
mitting plaintiff's  books  to   be  inspected   by   defendant's   counsel: 
Beals  v.  See,  10  Pa.  56,  1848;  (z)  issuing  attachment  to  compel  taking 
of  testimony  in  homicide  case:  Com.  v.  Buccieri,  153  Pa.  535,  1893; 
(a2)  order  in  which  evidence  is  introduced  or  witnesses  called  or  the 
manner  of  their  examination:  Irish  v.  Smith,  8  S.  &  R.  573,  1822; 
Frederic  v.  Gray,  10  S.  &  R.  182,  1823;  Hake  v.  Fink,  9  Watts  336, 
1840;  Sharp  v.  Emmet,  5  Whar.  288,  1839;  Schnable  v.  Doughty,  3 
Pa.  392,  1846 ;  Covanhovan  v.  Hart,  21  Pa.  495,  1853 ;  Smith  v.  Myler, 
22  Pa.  36,  1854;  Hemphill  v.  McClimans,  24  Pa.  367,  1855;  Finley  v. 
Stewart,  56  Pa.  183,  1860;  Aiken  v.  Stewart,  63  Pa.  30,  1864;  Brown 
v.  Finney,  67  Pa.  214,  1870;   Brinks  v.  Heise,   84  Pa.   246,  1877; 

368 


REVIEW  ON  APPEAL. 


§§228-31]  Discretion  of  Lower  Court       §228  (24)  (a2)-(12) 

Farmers'  Ins.  Co.  v.  Bair,  87  Pa.  124,  1878;  Myers  v.  Coal  Co.,  126 
Pa.  582,  1889 ;  Dosch  v.  Diem,  176  Pa.  603,  1896 ;  Hyndman  Water  Co., 
v.  Hyndman  Boro.,  7  Pa.  Super.  191,  1898;  Corkery  v.  O'Neill,  9  Pa. 
Super.  335,  1899;  Ulysses  Co.  v.  Ins.  Co.,  20  Pa.  Super.  384,  1902; 
Columbia  Fire  Proof  Co.  v.  Paper  Co.,  207  Pa.  232,  1903 ;  (b2)  extent 
of  cross-examination  of  witness:  Jackson  v.  Litch,  62  Pa.  451,  1869; 
Glenn  v.  Traction  Co.,  206  Pa.  135,  1903;  Com.  v.  Wil- 
liams, 41  Pa.  Super.  326,  1910;  (c2)  limiting  number  of  wit- 
nesses and  cumulation  of  proof:  Com.  v.  Gibbons,  3  Pa.  Super.  408, 
1897;  (d2)  admitting  evidence  not  strictly  rebuttal:  VanDike  v. 
Townsend,  35  L.  I.  171,  1878;  McMeen  v.  Com.  114  Pa.  300,  1886; 
Roland  v.  Eckman,  12  Pa.  Super.  75,  1899;  Fisher  v.  Ruch,  12  Pa. 
Super.  240,  1899;  (e2)  admission  or  rejection  of  witness  as  expert: 
Ardesco  Oil  Co.  v.  Gilson,  63  Pa.  146,  1869 ;  Sorg  v.  German  Congre- 
gation, 63  Pa.  156,  1869;  Delaware  Towboat  Co.  v.  Starrs,  69  Pa.  36, 
1871;  Allen's  Ap.,  99  Pa.  196,  1882;  (f2)  admission  or  rejection  of 
depositions:  Vincent  v.  Huff,  8  S.  &  R.  381,  1822;  Pipher  v.  Lodge, 
16  S.  &  R.  214,  1827;  Dennison  v.  Fairchild,  7  Watts  309,  1838; 
Covanhovan  v.  Hart,  21  Pa.  495,  1853;  Thornton  v.  Britton,  144  Pa. 
126,  1891;  (g2)  granting  or  refusing  exception  to  evidence:  Patterson 
v.  Roberts,  109  Pa.  42,  1885;  Floyd  v.  Hotchkiss,  5  Pa.  Super.  216, 
1897;  (see  §161,  note  (8)  ) ;  (h2)  striking  out  as  inadmissible,  evidence 
not  objected  to:  Robinson  v.  Snyder,  25  Pa.  203,  1855;  Eifert  v. 
Lytle,  37  W.  N.  C.  416,  1897;  (12)  refusing  motion  to  strike  out  evi- 
dence: United  States  Telegraph  Co.  v.  Wenger,  55  Pa.  262,  1867;  Cald- 
well  v.  Express  Co.,  36  Pa.  Super.  465,  1908;  (J2)  order  of  argument 
by  counsel:  Robeson  v.  Whitesides,  16  S.  &  R,  320,  1827;  Com.  v. 
Contner,  21  Pa.  266, 1853 ;  Hartman  v.  Ins.  Co.,  21  Pa.  466, 1853 ;  Smith 
v.  Frazier,  53  Pa.  226,  1866;  Staub  v.  Wolf,  4  Penny.  280, 1884;  Blume 
v.  Hartman,  115  Pa.  32,  1886 ;  Patterson  v.  Bank,  130  Pa.  419,  1889 ; 
Mendenhall  v.  Mendenhall,  12  Pa.  Super.  290,  1899 ;  Sheehan  v.  Rosen, 
12  Pa.  Super.  298,  1899;  Pittsburg  Eng.  Co.  v.  Mfg.  Co.,  43  Pa. 
Super.  485,  489,  1910;  (k2)  permitting  papers  to  go  out  with  jury: 
McCully  v.  Barr,  17  S.  &  R.  445,  1828;  Sholly  v.  Diller,  2  Rawle  177, 
1828;  Spence  v.  Spence,  4  Watts,  165,  1835;  (12)  entry  or  refusal  to 
enter  compulsory  non-suit:  Bavington  v.  R.  R.,  34  Pa.  358,  1859; 
Pownall  v.  Steele,  52  Pa.  446,  1866;  Mobley  v.  Bruner,  59  Pa.  481, 
1869;  Lehman  v.  Kellerman,  65  Pa.  489,  1870;  Ballentine  v.  White, 
77  Pa.  20,  1874;  Haverly  v.  Mercur,  78  Pa.  257,  1875;  Easton 

369 

24 


REVIEW  ON  APPEAL. 


§228  (24)  (12)-(p2)          Discretion  of  Lower  Court  [Chap.  15, 

v.  Neff,  102  Pa.  474,  1883;  Millcreek  Twp.  v.  Perry,  20  W.  N.  C.  359, 
1887;  Shenandoah  Boro.  v.  Erdman,  21  W.  N.  C.  553,  1888;  Schubkagel 
v.  Dierstein,  131  Pa.  46,  1890:  Kelly  v.  Bennett,  132  Pa.  218,  1890; 
Lowrey  v.  Robinson,  141  Pa.  189,  1891 ;  Wray  v.  Spence,  145  Pa.  399, 
1891;  Scranton  v.  Barnes,  147  Pa.  461,  1892;  Scanlon  v.  Suter,  158 
Pa.  275,  1893;  Medary  v.  Gathers,  161  Pa.  87,  1894;  Crawford  v. 
McKinney,  165  Pa.  605,  1895;  Beard  v.  Ry.,  3  Pa.  Super.  171,  1896; 
Davis  v.  Ins.  Co.,  40  W.  N.  C.  569,  1897;  Wallace  v.  Jameson,  179  Pa. 
98,  1897;  Davis  v.  Ins.  Co.,  5  Pa.  Super.  506,  1897;  Rockwell  v.  Boro., 
7  Pa.  Super.  95, 1898;  Reed  v.  Fidelity  Co.,  189  Pa.  596;  1899;  Morgan 
v.  Boro.,  29  Pa.  Super.  100, 1905;  Hallock  v.  Lebanon,  215  Pa.  1, 1906; 
Reece  v.  Rogers,  40  Pa.  Super.  171, 1909 ;  Reiser  v.  Eberly,  226  Pa.  21, 
1909;  see  also  §82,  note  (1)  ;(m2)  entry  of  non-pros  for  laches:  Susque- 
hanna  Ins.  Co.  v.  Clinger,  10  Pa.  Super.  92,  1899;  Sydney  v.  Linton, 
216  Pa.  240,  1906;  (n2)  withdrawing  or  refusing  to  withdraw  juror: 
Thompson  v.  Stevens,  71  Pa.  161,  1873 ;  Cook  v.  Motor  Co.,  225  Pa.  91, 
1909;  Keeper  v.  Mellot,  44  Pa.  Super.  471,  1910;  (see  also  (m), 
above) ;  (o2)  refusal  to  direct  jury  to  reconsider  evidence :  Moser  v. 
Mayberry,  7  Watts  12,  1838;  (p2)  granting  or  refusing  new  trial: 
Klein  v.  Ins.  Co.,  13  Pa.  247,  1850 ;  Thompson  v.  Barkley,  27  Pa.  263, 
1856;  Stokes  v.  Burrell,  3  Grant  241,  1858;  Cathcart  v.  Com.,  37  Pa. 
108,  1860;  Howser  v.  Com.,  51  Pa.  332,  1866;  Gray  v.  Com.,  101  Pa. 
380,  1882;  McManus  v.  Com.,  91  Pa.  57,  1879;  Louchheim  v.  Henzey, 
9  W.  N.  C.  571,  1881 ;  McGinnis  v.  Com.,  102  Pa.  66,  1883 ;  Alexander 
v.  Com.,  105  Pa.  1,  1884;  McClain  v.  Com.,  110  Pa.  263,  1885;  Mc- 
Kenney  v.  Fawcett,  138  Pa.  344,  1890;  Com.  v.  Fitzpatrick,  1  Pa. 
Super.  518,  1896;  DeGrote  v.  DeGrote,  175  Pa.  50,  1897;  Shanahan  v. 
Ins.  Co.,  "6  Pa.  Super.  65,  1897;  McNeile  v.  Cridland,  6  Pa.  Super.  428, 
1898;  Com.  v.  Roddy,  184  Pa.  274,  1898;  Com.  v.  Duff,  7  Pa.  Super. 
415,  1898;  Palmer  v.  Publishing  Co.,  7  Pa.  Super.  594,  1898;  Reno  v. 
Shallenberger,  8  Pa.  Super.  436,  1898;  Drenning  v.  Wesley,  189  Pa. 
160,  1899 ;  Com.  v.  Heidler,  191  Pa.  375,  1899 ;  Woodward  v.  Traction 
Co.,  17  Pa.  Super.  576,  1901 ;  Donoghue  v.  Traction  Co7,  17  Pa.  Super. 
582,  1901;  Slattery  v.  Supreme  Tent,  etc.,  19  Pa.  Super.  108,  1902; 
Com.  v.  Houghton,  22  Pa.  Super.  52,  1903;  Gazzam  v.  Reading,  202  Pa. 
231,  1903;  Stephens  v.  Gunzenhauser,  27  Pa.  Super.  417,  1904;  Pierce 
v.  Barney,  209  Pa.  132,  1904;  Mix  v.  N.  American,  209  Pa.  636,  1904; 
McGiffin  v.  Grocery  Co.,  29  Pa.  Super.  431,  1905;  Carpenter  v.  Lan- 
caster, 212  Pa.  581,  1905 ;  Com.  v.  Houghton,  31  Pa.  Super.  528,  1906 ; 

370 


REVIEW  ON  APPEAL. 


§§  228-31  ]  Discretion  of  Lower  Court      §  228  ( 24 )  ( p2 )  -  ( a3) 

Hanforth  v.  Ry.,  213  Pa.  365,  1906;  Dinan  v.  Supreme  Council,  213 
Pa.  489,  1906;  Sternberg  v.  Sklaroff,  32  Pa.  Super.  116,  1907;  Com.  v. 
Lombard!,  221  Pa.  31,  1908;  Wirsing  v.  Smith,  222  Pa.  8,  1908;  Com. 
v.  Garrito,  222  Pa.  304, 1908;  Stern  v.  Johnston,  38  Pa.  Super.  1,  1909; 
Brown  v.  Waite,  38  Pa.  Super.  216,  1909;  Moyer  v.  Phillips,  40  Pa. 
Super.  1, 1909;  Cameron  v.  Russell,  40  Pa.  Super.  405,  1909;  Goldstein 
v.  Twp.,  43  Pa.  Super.  158, 1910 ;  Weitz  v.  Banfield,  226  Pa.  241, 1910 ; 
Belber  Trunk  Co.  v.  Silberblatt,  44  Pa.  Super.  32, 1910;  Mellinger  v.  R. 
R.,  229  Pa.  122,  1910;  (q2)  Act  May  20,  1891,  P.  L.  101,  2  Purd.  1439, 
pi.  15,  has  not  changed  this:  Smith  v.  Times  Pub.  Co.,  178  Pa.  481, 
1896 ;  Marcy  v.  Brock,  207  Pa.  95,  1903 ;  Murtland  v.  English,  214  Pa. 
325,  1906;  Com.  v.  Striepeke,  32  Pa.  Super.  82,  1907;  (see  note  (9), 
above) ;  (r2)  granting  or  refusing  rehearing  and  modification  by  court 
of  its  decree  or  order:  Moser  v.  Mayberry,  7  Watts  12,  1838;  Reims 's 
Ap.,  27  Pa.  42, 1857;  KimmePs  Ap.,  2  W.  N.  C.  138, 1875;  Kepner's  Ap. 
94  Pa.  74, 1880;  Roddy's  Ap.,  99  Pa.  9, 1881;  Mortimer's  Ap.,  9  W.  N. 
C.  313,  1881;  Baldwin's  Ap.,  112  Pa.  2,  1886;  Lowenstein  v.  Ins.  Co., 
132  Pa.  410,1890;  Lauck's  Application,  2  Pa.  Super.  53,1896;  Fullerton 
v.  Peabody,  2  Pa.  Super.  145,  1896 ;  Given  v.  Given,  25  Pa.  Super.  467, 
1908;  Com.  v.  R.  R.,  28  Pa.  Super.  173,  1905;  Groff's  Est,  36  Pa. 
Super.  140, 1908;  Catts  v.  Catts,  37  Pa.  Super.  598,  1908;  Toy's  Case, 
224  Pa.  358,  1909;  see  also  §74,  note  (1)  (s),  and  (z3),  this  note,  as 
to  opening  judgments;  (s2)  refusal  to  modify  or  set  aside  verdict: 
Com.  v.  Jongrass,  181  Pa.  172,  1897;  Com.  v.  R.  R.,  28  Pa.  Super.  173, 
1905;  White  v.  Ry.,  215  Pa.  462,  1906;  see  also  note  (9),  this  section; 
(t2)  recommending  special  verdict:  Baltimore  &  Ohio  R.  R.  v.  School 
Dist.,  30  P.  L.  J.  187,  1882;  (u2)  amending  verdict:  Cohn  v.  Scheuer, 
115  Pa.  178,  1886;  (v2)  refusal  to  amend  record;  Kendig's  Ap.,  82 
Pa.  68,  1872;  (w2)  approval  and  refusal  of  charters  and  amendments 
thereof;  Vaux's  Ap.,  109  Pa.  497,  1885;  Grand  Lodge  of  A.  0.  U.  W., 
110  Pa.  513,  1885;  African  M.  E.  Church,  28  Pa.  Super.  193,  1905; 
(x2)  dismissing  exceptions  to  granting  charter  on  ground  of  simi- 
larity of  names:  St.  Joseph's  Society,  35  Pa.  Super.  80,  1908;  (y2) 
allowance  of  alimony  in  divorce:  Breinig  v.  Breinig,  26  Pa.  161,  1855; 
Waldron  v.  Waldron,  55  Pa.  231,  1866;  McClurg's  Ap.,  66  Pa.  366, 
1870;  Fernald  v.  Fernald,  5  Pa.  Super.  629,  1897;  Jones  v.  Jones,  37 
Pa.  Super.  442,  1908;  (z2)  opening  final  decree  in  divorce  on  ground 
of  after-discovered  evidence:  Catts  v.  Catts,  37  Pa.  Super.  598,  1909; 
(a3)  revoking  final  decree  in  divorce:  Given  v.  Given,  25  Pa.  Super. 

371 


REVIEW  ON  APPEAL. 


§228  (24)  (b3)-(q3)  Discretion  of  Lower  Court  [Chap.  15, 

467, 1904;  (b3)  refusing  mandamus:  Com.  v.  Davis,  109  Pa.  128,  1885; 
Lehigh  Coal  Co.'s  Ap.,  112  Pa.  360,  1886;  Lower  Saucon  Twp.  v. 
Broadhed,  9  Atl.  63,  1887;  Com.  v.  County,  133  Pa.  180,  1890; 
(c3)  refusal  to  grant  quo  warranto:  Com.  v.  McCarter,  98  Pa. 
607, 1881;  Com.  v.  Davis,  109  Pa.  128, 1885;  (d3)  appointment  of  road 
viewers  and  reviewers:  Moore  Twp.  Road,  17  Pa.  116,  1851;  Alle- 
ghany  City  Road,  1  Pitts.  67,  1853;  McManus's  Ap.,  5  Pa.  Super.  65, 
1897;  Overfield  Twp.  Rd.,  25  Pa.  Super.  5,  1904;  (e3)  setting  aside  or 
confirming  report  of  road  viewers:  Fretz's  Ap.,  15  Pa.  397,  1851; 
North  Penna.  R.  R.  v.  Davis,  26  Pa.  238,  1856 ;  Chartiers  Twp.  Road, 
1  Mona.  365,  1889;  Ross  Twp.  Road,  5  Pa.  Super.  85,  1897;  (f3) 
questions  of  necessity  or  expediency  of  roads  or  bridges:  White- 
marsh  Road,  5  Pa.  101,  1847;  Youghiogheny  River  Bridge,  2  Pa. 
Super.  265,  1896;  (g3)  approving  bonds  in  condemnation  proceedings: 
Stoever  v.  Immel,  1  Watts  258,  1832;  Chew's  Case,  8  W.  &  S.  375, 
1845;  Slocum's  Ap.,  12  W.  N.  C.  84,  1882;  Erie  County's  Ap.,  14  Atl. 
44,  1888;  Twelfth  St.  Market  Co.  v.  R.  R.,  142  Pa.  580, 1891;  McManus 
v.  Turnpike  Co.,  5  Pa.  Super.  65,  1897;  Katharine  Water  Co.'s  Case, 
32  Pa.  Super.  94, 1906;  Pitts.,  etc.,  R.  R.  v.  Gamble,  204  Pa.  198,  1902; 
(h3)  appointing  guardians:  McCann's  Ap.,  49  Pa.  304,  1865;  Gray's 
Ap.,  96  Pa.  243,  1880;  Potes's  Ap.,  106  Pa.  574,  1884;  (i3)  appointing 
or  removing  receivers :  Misselwitz  's  Case,  177  Pa.  359,  1896 ;  Hilliard 
v.  Supply  Co.,  221  Pa.  503,  1908;  (J3)  removal  of  committee  of  luna- 
tic: Black's  Case,  18  Pa.  434,  1852;  Dean's  Ap.,  90  Pa.  106,  1879; 
(k3)  refusal  to  appoint  sequestrator  of  life  estate:  Lancaster  County 
Bank  v.  Stauffer,  10  Pa.  398,  1849;  Lefever  v.  Witmer,  10  Pa.  505, 
1849;  (13)  refusing  to  direct  executor  to  make  second  application  to 
sell  realty  unsold  under  former  order  by  reason  of  incumbrance: 
Gamble  v.  Woods,  53  Pa.  158,  1866;  (m3)  confirming  or  refusing  to 
set  aside  awards  under  agreements  of  reference :  Fulweiler  v.  Baugher, 
15  S.  &  R.  45,  1826;  Kline  v.  Guthart,  2  P.  &  W.  490,  1831;  Bemus  v. 
Clark,  29  Pa.  251,  1857;  (n3)  recommitting  report  of  referees:  Gratz 
v.  Phillips,  14  S.  &  R.  144,  1826;  (o3)  ordering  distribution  of  funds: 
Com.  v.  Justice,  34  Pa.  165, 1859 ;  Sykes  v.  Thornton,  152  Pa.  94,  1892 ; 
(p3)  allowance  of  compensation  to  officers  appointed  by  court:  Tot- 
ten's  Ap.,  40  Pa.  385, 1861;  Morris's  Ap.,  42  L.  I.  395,  1885;  Stockdale 
v.  Maginn,  207  Pa.  226,  1903;  Scott  v.  Carl,  24  Pa.  Super,  460,  1904; 
Moore's  Est.,  211  Pa.  338,  1905;  (q3)  granting  or  refusing  issue: 
Scheetz's  Ap.,  35  Pa.  88,  1860;  Thompson's  Ap.,  103  Pa.  603,  1883; 

372 


REVIEW  ON  APPEAL. 


§§228-31]  Discretion  of  Lower  Court  §228  (24)  (q3)-(z3) 

Knowles  v.  Jacobs,  4  Pa.  Super.  268,  1897;  Canavan  v.  Paye,  34  Pa. 
Super.  91,  1907;  (r3)  making  up  such  issue:  Neff  v.  Barr,  14  S.  &  R. 
166,  1826;  Palmer's  Est.,  132  Pa.  297,  1890;  Knowles  v.  Jacobs,  4  Pa. 
Super.  268,  1897;  (s3)  granting  or  refusing  liquor  license:  Toole's 
Appeal,  90  Pa.  376,  1879;  Lauck's  Ap.,  2  Pa.  Super.  53,  1896;  Dono- 
ghue's  License,  5  Pa.  Super.  1,  1897;  Miller's  Ap.,  8  Pa.  Super.  223, 
1898;  Moyer's  Ap.,  8  Pa.  Super.  475,  1898;  Cramer's  License,  23  Pa. 
Super.  596,  1904;  Knoblauch's  License,  28  Pa.  Super.  323,  1905;  De- 
Haven  's  License,  31  Pa.  Super.  335,  1906 ;  Lippincott  's  License,  44  Pa. 
Super.  459,  1910;  (t3)  refusing  to  grant  rehearing  in  application  for 
license:  Lauck's  Ap.,  2  Pa.  Super.  53,  1896;  Alfonso's  Case,  11  Pa- 
Super.  565,  1899;  (u3)  incorporation  of  boroughs  under  Act  April  3, 
1851,  P.  L.  320,  1  Purd.  492,  pi.  79;  Quakertown  Boro.,  3 
Grant  203,  1855 ;  Sewickley  Boro.,  36  Pa.  80,  1859 ;  Osborne  Boro.,  101 
Pa.  284,  1882;  Moosic  Boro.,  12  Pa.  Super.  353,  1899;  Old  Forge 
Boro.,  12  Pa.  Super.  359,  1899;  Edgworth  Boro.,  25  Pa.  Super.  554, 
1904;  Mill  Creek  Boro.,  32  Pa.  Super.  465, 1907;  (v3)  refusing  requests 
to  hear  witnesses  relative  to  freeing  bridge  from  toll  under  Act  May 
8,  1876,  P.  L.  131,  where  such  request  was  made  after  long  delay: 
Moxham  &  Ferndale  Bridge,  36  Pa.  Super.  298, 1908;  (w3)  question  of 
necessity  of  special  court  under  Act  April  14,  1834,  P.  L.  333,  §37, 
Purd.  632 :  Phila.  Library  Co.  v.  Ingham,  1  Whar.  72, 1836 ;  Barrington 
v.  Bank,  14  S.  &  R.  405,  1826;  Ellmaker  v.  Buckley,  16  S.  &  R.  72, 
1827;  (x3)  refusal  of  quarter  sessions  of  permission  to  remove  re- 
mains from  burying  ground,  under  Act  May  12,  1887,  P.  L.  96,  1  Purd. 
561,  pi.  13:  Zion's  German  Congregation,  1  Mona.  635,  1889;  (y3)  de- 
terminating scope  of  decree:  Fullerton  v.  Peabody,  2  Pa.  Super.  145, 
1896;  (z3)  opening  or  refusing  to  open  judgment:  Bower  v.  Blessing,  8 
S.  &  R.  243, 1822;  Kalbach  v.  Fisher,  1  Rawle  323, 1829;  Catlin  v.  Rob- 
inson, 2  Watts  373,  1834;  Compher  v.  Anawalt,  2  Watts  490,  1834; 
Skidmore  v.  Bradford,  4  Pa.  296, 1847;  McKee  v.  Sanford,  25  Pa.  105, 
1855;  Bunce  v.  Wightman,  29  Pa.  335,  1857;  Hutchinson  v.  Ledlie,  36 
Pa.  112,  1859;  Ringwalt  v.  Brindle,  59  Pa.  51,  1868;  Jones  v.  Dilworth, 
63  Pa.  447, 1869;  McClelland  v.  Pomeroy,  75  Pa.  410, 1S74;  Hawkins  v. 
Weightman,  1  W.  N.  C.  370,  1875;  Landis  v.  Maher,  1  W.  N.  C.  407, 
1875;  People's  Ins.  Co.  v.  Hartshorne,  84  Pa.  453,  1877;  Barley's  Ap., 

90  Pa.  321,  1879;  Hickernell's  Ap.,  90  Pa.  328,  1879;  Wernet's  Ap., 

91  Pa.  319,  1879;  Kneedler's  Ap.,  92  Pa.  428,  1880;  Babcock  v.  Day, 
104  Pa.  4,  1883;  Lyons  v.  Phillips,  106  Pa.  57,  1884;  Griffith's  Ap.,  16 

373 


REVIEW  ON  APPEAL. 


§228  (24)  (z3)-(i4)  Discretion  of  Lower  Court  [Chap.  15, 

W.  N.  C.  249,  1885;  Gaskill  v.  Crawford,  130  Pa.  28,  1889;  Gibson  v. 
Simmons,  134  Pa.  189,  1890;  Homer  v.  Horner,  145  Pa.  258,  1892; 
Kelber  v.  Plow  Co.,  146  Pa.  485,  1892;  Poster  v.  Carson,  147  Pa.  157, 
1892;  Com.  v.  Titman,  148  Pa.  168,  1892;  Duane  v.  Addicks,  155  Pa. 
124,  1893;  Renwick  v.  Richardson,  5  Pa.  Super.  202,  1897;  Leader  v. 
Dunlap,  6  Pa.  Super.  243,  1897;  Mullet  v.  Hensel,  7  Pa.  Super.  524, 
1898;  Heilner  v.  Falls  Co.,  9  Pa.  Super.  78,  1898;  Walsh  v.  Ashford, 
9  Pa.  Super.  566,  1898;  Huntington  County  Line,  11  Pa.  Super.  386, 
1899;  Halahan  v.  Cassidy,  12  Pa.  Super.  227,  1899;  Green  v.  Boyd, 
13  Pa.  Super.  651,  1900;  Jugsmith  v.  Rosenblatt,  15  Pa.  Super.  296, 
1900;  Kaier  Co.  v.  O'Brien,  202  Pa,  153,  1902;  Whitecar  v.  Supreme 
Castle,  18  Pa.  Super.  631,  1902;  Zartman  v.  Spangler,  21  Pa.  Super. 
647,  1903;  Woodward  v.  Carson,  208  Pa.  144,  1904;  Roberts  Machine 
Co.  v.  Kelly,  28  Pa.  Super.  540, 1905;  St.  James  B.  &  L.  Asso.  v.  Kelly, 
29  Pa.  Super.  470, 1905;  Augustine  v.  Wolf,  215  Pa.  558, 1906;  McCul- 
lough  v.  Kinnan,  31  Pa.  Super.  557,  1906;  Blake  Tobacco  Co.  v.  Pos- 
luszsy,  31  Pa.  Super.  602,  1906;  Parrish  v.  Felts,  215  Pa.  654,  1906; 
Doyle  v.  Reiter,  32  Pa.  Super.  251, 1907;  Jay  v.  Amanter,  43  Pa.  Super. 
529,  1910;  Atkins  v.  Grist,  44  Pa.  Super.  310, 1910;  Fox  v.  Toller,  229 
Pa.  539, 1911 ;  Jaffe  v.  Cooperman,  231  Pa.  219, 1911 ;  see  also  §74,  note 
(1)  (s) ;  (a4)  imposing  conditions  or  terms  in  opening  judgment:  Du- 
bois  v.  Glaub,  52  Pa.  238,  1866;  Huston  Ins.  Co.  v.  Beale,  110  Pa.  321, 
1885;  Kelber  v.  Plow  Co.,  146  Pa,  485,  1892;  (b4)  striking  off  judg- 
ment: Shoup  v.  Shoup,  205  Pa.  22,  1903;  (c4)  striking  off  satisfaction 
of  judgment:  Gilmore  v.  Dunleavy,  6  Pa.  Super.  603,  1898;  Shoup  v. 
Shoup,  205  Pa.  22,  1903;  Campbell  v.  Erb,  35  Pa.  Super.  436,  1908; 
(d4)  allowance  of  set  off  of  one  judgment  against  another:  Wellock 
v.  Cowan,  16  S.  &  R.  318, 1827;  Burns  v.  Thornburg,  3  Watts  78,  1834; 
Harris  v.  Harris,  35  L.  I.  124,  1878;  Leitz  v.  Hohman,  207  Pa.  289, 
1904;  (e4)  taxing  costs:  Fidelity  Co.'s  Ap.,  11  W.  N.  C.  104,  1882; 
Orbison's  Ap.,  22  W.  N.  C.  116,  1888;  McCauley's  Ap.,  86  Pa.  187, 
1878;  Kelly's  Case,  17  Pa.  Super.  344,  1901;  Hartley  v.  Weideman,  28 
Pa.  Super.  50,  1905;  Com.  v.  Mitchell,  33  Pa.  Super.  345,  1907;  (f4) 
directing  payment  of  costs  of  proceedings  out  of  estate:  Schaifer's 
Est.,  155  Pa.  250, 1893 ;  (g4)  refusing  to  certify  trespass  as  wilful  and 
malicious  to  enable  plaintiff  to  recover  costs:  Winger  v.  Rife,  101  Pa. 
152,  1882;  (h4)  refusing  resubmissions  to  grand  jury  of  indictment 
imposing  costs  on  prosecutor:  Com.  v.  Charters,  20  Pa.  Super.  599, 
1902;  (14)  order  of  payment  to  or  by  receivers:  Sykes  v.  Thornton, 

374 


REVIEW  ox  APPEAL. 


§§  228-31]  Discretion  of  Lower  Court        §  228  (24)  ( j4)- (25)  (a) 

152  Pa.  94,  1892;  (J4)  issuing,  staying  and  setting  aside  executions: 
Miller  v.  Milford,  2  S.  &  R.  35,  1815;  Nicholas  v.  Wolfersberger,  5 
S.  &  R.  167,  1819;  Renninger  v.  Thompson,  6  S.  &R.  1,  1820;  Donald- 
son v.  Danville  Bank,  20  Pa.  245,  1853 ;  Gamble  v.  Woods,  53  Pa.  158, 
1866;  Kelly  v.  Cover,  1  W.  N.  C.  467, 1875;  Weidknecht  v.  Boyer,  2  W. 
N.  C.  638,  1875;  Newhart  v.  Wolfe,  2  Penny.  295,  1882;  (k4)  refusing 
order  of  sale:  Robinson's  Ap.,  11  Pa.  412,  1849;  (14)  directing  form  of 
sci.  fa.  q.  e.  n. :  Ramsey  v.  Ramsey,  15  Pa.  Super.  214,  1900 ;  (m4)  con- 
firming or  refusing  to  set  aside  sheriff's  sales,  or  sales  in  partition 
proceedings:  Sloan's  Case,  8  Watts  194,  1839;  Haslage's  Ap.,  37  Pa. 
440,  1860;  Laird  v.  McCarter,  2  W.  N.  C.  213,  1875;  Hoffa's  Ap.,  82 
Pa.  297,  1876;  Griffith  v.  Edwards,  10  W.  N.  C.  271,  1881;  Leonard  v. 
Leonard,  20  W.  N.  C.  346,  1887;  William's  Est.,  140  Pa.  187,  1891; 
Southwest  Gas  Co.  v.  Gas  Co.,  145  Pa,  13,  1892;  Laird's  Ap.,  2  Pa. 
Super.  300,  1896;  Stroup  v.  Raymond,  183  Pa.  279,  1897;  Westmore- 
land B.  &  L.  Asso.  v.  Nesbit,  21  Pa.  Super.  150,  1902;  Smith's  Est., 
207  Pa.  604,  1904;  Haspel  v.  Lyons,  41  Pa.  Super.  285,  1910;  Yost  v. 
Coyle,  226  Pa.  458,  1910;  (n4)  confirming  sale  under  railroad  mort- 
gage: Shellenberger  v.  R.  R.,  218  Pa.  159,  1907;  (o4)  annulling 
exceptions  to  false  return  of  levari  facias :  0  'Hara  v.  Baum,  1  Penny. 
430,  1881;  (p4)  directing  acknowledgment  of  sheriff's  deed:  Smith  v. 
Hutchinson,  3  Walk.  254,  1882;  (q4)  refusal  to  moderate  or  remit  for- 
feited recognizance:  Bross  v.  Com.,  71  Pa.  262,  1872;  Com.  v.  Ob- 
lender,  135  Pa.  530,  536,  1890;  Com.  v.  Fogelman,  3  Pa.  Super.  566, 
1897;  Com.  v.  Harvey,  222  Pa.  214, 1908;  (r4)  distribution  of  proceeds 
of  forfeited  recognizance :  Com.  v.  Justice,  34  Pa.  165, 1859 ;  (si)  while 
appellate  court  will  not  review  on  merits  in  order  of  contempt  for  vio- 
lating injunction,  it  must  exercise  supervisory  power  as  to  jurisdiction 
and  legality  of  proceedings:  Palmer  v.  School  Board,  40  Pa.  Super. 
203,  1910. 

(25)  Harmless  Error — Admission  of  Evidence,  (a)  Where  it  ap- 
pears from  the  record  that  the  error  assigned  by  the  appellant  could 
have  worked  no  injury  to  him  and  could  not  have  changed  the  result, 
the  appellate  court  will  not  reverse.  Thus,  the  appellate  court  will 
not  reverse  where  evidence  erroneously  admitted  was  not  prejudicial 
to  appellant:  Edgar  v.  Boies,  11  S.  &  R.  445,  1824;  Boyd  v.  Boyd,  1 
Watts  365,  1833;  O'Donnell  v.  Lynch,  1  W.  &  S.  283,  1841;  Postens  v. 
Postens,  3  W.  &  S.  127, 1842;  Bunting  v.  Young,  5  W.  &  S.  188,  1843; 
Reading  R.  R.  v.  Johnson,  7  W.  &  S.  317,  1844;  Unangst  v.  Kraemer, 

375 


REVIEW  ON  APPEAL. 


§228  (25)  (a)- (e)      Harmless  Error — Admitting  Evidence  [Chap.  15, 

8  W:  &  S.  391,  1845;  Miles  v.  Stevens,  3  Pa.  21,  1846;  Uplinger  v. 
Bryan,  12  Pa.  219,  1849;  Piper's  Ap.,  20  Pa.  67,  1852;  Hood  v.  Hood, 
2  Grant  229,  1858;  Johns  v.  Batton,  30  Pa,  84,  1858;  Brewster  v. 
Sterrett,  32  Pa.  115,  1858;  Burkholder  v.  Lapp,  31  Pa.  322,  1858;  Ly- 
coming  Ins.  Co.  v.  Sailer,  67  Pa.  108, 1871;  Kauch  v.  Scholl,  68  Pa.  234, 
1871;  Pittsburg  etc.,  R.  R.  v.  Caldwell,  74  Pa.  421,  1873;  Brethren  Aid 
Society  v.  McDermond,  12  W.  N.  C.  73,  1882;  Lerch  v.  Snyder,  112  Pa. 
161,  1886;  Jones  v.  Kroll,  116  Pa.  85,  1887;  Trego  v.  Pierce,  119  Pa. 
139,  1888;  Lewis  v.  Protheroe,  17  Atl.  200,  1889;  Vulcanite  Paving 
Company  v.  Ruch,  147  Pa.  251,  1892;  Shepherd  v.  Busch,  154  Pa.  149, 
1893;  Malone  v.  R.  R.,  157  Pa.  430,  1893;  Whitmire  v.  Montgomery, 
165  Pa.  253,  1895;  Patterson  v.  Gas  Co.,  172  Pa.  554,  1896;  Powers  v. 
Rich,  184  Pa.  325,  1898;  Tenan  v.  Cain,  188  Pa.  242,  1898;  Brown  v. 
Kolb,  8  Pa.  Super.  413,  1898;  Keystone  Cycle  Co.  v.  Jones,  12  Pa.  Su- 
per. 134,  1899;  Woodward  v.  Traction  Co.,  17  Pa.  Super.  576,  1901; 
Kennedy  v.  Oil  Co.,  199  Pa.  644,  1901 ;  Wills  v.  Hardcastle,  19  Pa.  Su- 
per. 525,  1902;  Com.  v.  Craig,  19  Pa.  Super.  81,  1902;  Com.  v.  R.  R.,  23 
Pa.  Super.  235, 1903;  Com.  v.  Lenousky,  206  Pa.  277, 1903;  (b)  and  ap- 
pellate must  show  not  only  that  an  error  was  committed,  but  that  he 
was  injured  thereby :  Pittsburg  Trust  Co.  v.  Motheral,  8  Pa.  Super.  433, 
1898;  Com.  v.  Kay,  14  Pa.  Super.  376,  1900;  Com.  v.  Craig,  19  Pa. 
Super.  81,  1902;  Cox  v.  Wilson,  25  Pa.  Super.  635,  1904;  Schonhardt 
v.  R.  R.,  210  Pa.  224,  1907;  (c)  admission  of  incompetent  evidence 
is  harmless  where  such  error  is  in  admitting  secondary  evidence  and 
the  writing  is  subsequently  produced:  Wolverton  v.  Hart,  7  S.  & 
R.  278,  1821;  Hart  v.  Gregg,  10  Watts,  185,  1840;  Messner  v.  Lan- 
caster Co.,  23  Pa.  291,  1854;  Van  Home  v.  Dick,  151  Pa.  341,  1893; 
Mulhearn  v.  Ruch,  24  Pa.  Super.  483,  1904;  (d)  and  admission  of 
writing  or  other  matter  before  proof  of  identity  is  cured  by  subse- 
quent proof:  Morrell  v.  Express  Co.,  34  L.  I.  321,  1877;  Beardslee  v. 
Township,  188  Pa.  496,  1898;  (e)  admission  of  incompetent  evidence 
is  harmless  where  the  same  facts  which  were  the  subject  of  the  incom- 
petent testimony  were  subsequently  established  by  competent  and  con- 
clusive testimony :  Wolverton  v.  Hart,  7  S.  &  R.  273,  1821 ;  Backestoss 
v.  Com.,  8  Watts  286, 1839;  Hart  v.  Gregg,  10  Watts  185, 1840;  O'Don- 
nell  v.  Lynch,  1  W.  &  S.  283,  1841;  Gaskell  v.  Morris,  7  W.  &  S.  32, 
1844;  Evans  v.  Mengel,  3  Pa.  239,  1846;  Wollenweber  v.  Ketterlinus, 
17  Pa.  389,  1851;  Kemmerer  v.  Edelman,  23  Pa.  143,  1854;  Messner  v. 
Lancaster  Co.,  23  Pa.  291,  1854;  Powell  v.  Derrickson,  178  Pa.  612, 

3/6 


REVIEW  ox  APPEAL. 


§§  228-31]  Harmless  Error — Admitting  Evidence  §  228  (25)  (e)-(p) 

1897;  Robbins  v.  Farwell,  193  Pa.  37,  1899;  Stewart  v.  Machine  Co., 
200  Pa.  611,  1901;  Shultz  v.  Seibel,  209  Pa.  27,  1903;  Mulhearn  v. 
Roach,  24  Pa.  Super.  483,  1904;  Com.  v.  Klein,  42  Pa.  Super.  66,  1910; 
Coles 's  Case,  230  Pa.  162,  1911;  (f)  unless  it  clearly  appears  that  it 
tended  to  draw  the  minds  of  the  jurors  from  the  point  in  issue  or  to 
mislead  them:  Grier  v.  Borough,  6  Pa.  Super.  542,  1898;  Roland  v. 
Eckman,  12  Pa.  Super.  75,1899;  (g)  or  where  an  envelope  containing 
libelous  letter  is  admitted  without  evidence  of  its  authenticity,  when 
letter  was  complete  in  itself  and  sufficiently  proved:  Aspell  v.  Smith, 
134  Pa.  59,  1890;  (h)  evidence  erroneously  admitted  but  subse- 
quently withdrawn  from  the  consideration  of  the  jury  before  argu- 
ment is  not  ground  for  reversal :  Miller  v.  Miller,  4  Pa.  317, 1846 ;  Cad- 
wallader  v.  Brodie,  8  Sad.  609,  1888;  Franklin  Ins.  Co.  v.  Gruver,  100 
Pa.  266,  1882 ;  Sidney  Furniture  Co.  v.  Warsaw  Sch.  Dist.,  158  Pa.  35, 
1892;  Rathgebe  v.  R.  R.,  179  Pa.  31,  1897;  Maust  v.  Creasy,  42  Pa. 
Super.  633,  1910;  (i)  if  objectionable  testimony  is  at  once 
stricken  out  and  it  does  not  appear  to  have  prejudiced  appellant, 
court  will  not  reverse:  Mitchell  v.  Edeburn,  37  Pa.  Super.  223,  1908; 
(j)  but  refusal  to  strike  out  incompetent  evidence  tending  to  prejudice 
jury  will  not  be  cured  by  instruction  in  general  charge  that  such  evi- 
dence be  disregarded:  Delaware  &  Hud.  Canal  Co.  v.  Barnes,  31  Pa. 
193,  1858;  Penna.  R.  R.  v.  Butler,  57  Pa.  335,  1868;  Huntington  R.  R. 
v.  Decker,  82  Pa.  119, 1876;  Erie  &  N.  W.  R.  R.  v.  Smith,  125  Pa.  259, 
1889;  Harmony  v.  R.  R.,  222  Pa.  631, 1909;  (k)  unless  it  appears  from 
verdict  that  jury  did  disregard  such  evidence:  see  cases  (a),  this  note; 
or  that  court  or  auditor  hearing  case  were  not  influenced  thereby: 
Breneman's  Est.,  65  Pa.  298,  1870;  (1)  or  where  verdict  has  rendered 
it  immaterial :  Bunce  v.  Stanford,  27  Pa.  265,  1856 ;  Martz  v.  Traction 
Co.,  14  Pa.  Super.  90,  1900 ;  see  also  notes  (20)  (i)  and  (22)  (d2) ; 
(m)  or  where  it  could  not  have  influenced  the  verdict :  Peterson  v. 
Speer,  29  Pa.  478,  1857;  Patterson  v.  Gas  Co.,  37  W.  N.  C.  422,  1896; 
Closser  v.  Township,  11  Pa.  Super.  112,  1899 ;  Wills  v.  Hardcastle,  19 
Pa.  Super.  525,  1902;  White  v.  R.  R.,  222  Pa.  534,  1909;  (see  also  (a), 
this  note) ;  (n)  or  where  jury  were  instructed  that  evidence  erroneously 
admitted  was  insufficient  to  establish  the  fact  for  which  it  was  given: 
Hood  v.  Hood,  2  Grant  229,  1858;  (o)  or  where  incompetent  evidence 
was  not  the  basis  of  any  finding  in  the  case:  Countrymen's  Est.,  151  Pa. 
577, 1892;  (p)  or  where  writing  admitted  was  not  involved  in  case:  Wi- 
nans  v.  Bunnell,  13  Pa.  Super.  445,  1900;  (q)  or  where  sheriff's  return 

377 


REVIEW  ON  APPEAL. 


§228  (25)  (q)- (26)  (a)      Harmless  Error— Admitting  Evidence      [Chap.  15, 

to  writ  of  ejectment  was  allowed  to  be  read  in  evidence,  defendant 
having  testified  that  he  was  in  possession  of  disputed  premises: 
Wilcox  v.  Snyder,  22  Pa.  Super.  451,  1903;  (r)  or  where  such  evi- 
dence was  subsequently  made  legal  in  the  course  of  the  trial:  Hannay 
v.  Stewart,  6  Watts  487,  1837;  Gaskell  v.  Morris,  7  W.  &  S.  32,  1844; 
see  also  (d)  and  (e),  above) ;  (s)  or  where  appellant 
had  previously  allowed  his  own  witness  to  testify  to 
alleged  irrelevant  matters:  Schriver  v.  Eckenrod,  1  Penny. 
55,  1881;  Shannon  v.  Castner,  21  Pa.  Super.  294,  1902;  (t)  or  where 
incompetent  evidence  subsequently  becomes  competent:  Morrell  v. 
Express  Co.,  34  L.  I.  321, 1877;  Cam  v.  Fillman,  10  W.  N.  C.  152, 1881 ; 
Laird  v.  Campbell,  100  Pa.  159,  1882;  Colonial  Trust  Co.  v.  Getz,  28 
Pa.  Super.  619,  1905;  (u)  where  point  is  ruled  both  ways,  but  erron- 
eous ruling  was  last  and  error  appears  to  have  been  harmful,  case 
will  be  reversed:  Rice  v.  Com.  100  Pa.  28,  1882;  (v)  where  an  im- 
proper question  is  unanswered,  court  will  not  reverse:  Allen  v.  Ros- 
tain,  11  S.  &  R.  362,  1824;  Penna.  Bank  v.  Haldeman,  1  P.  &  W.  161 
1829;  Lewis  v.  Baker,  5  Rawle  114, 1835;  Phelin  v.  Kenderdine,  20  Pa. 
354,  1853;  Musser  v.  Ry.,  176  Pa.  621,  1896;  Com.  v.  Smith,  2  Pa. 
Super.  474,  1896;  (w)  so  also,  where  it  is  answered  in  such  a  manner 
as  to  cause  no  injury  to  appellant :  Dean  v.  Herrold,  37  Pa.  150,  1860 ; 
Scott  v.  Baker,  37  Pa.  330,  1860;  Haupt  v.  Haupt,  15  Atl.  700,  1888; 
(x)  refusal  to  strike  out  speculative  answer  of  witness  which  is 
meaningless  is  harmless  error:  White  v.  R.  R.,  222  Pa.  534,  1908;  (y) 
appellate  court  will  not  reverse  because  evidence  which  should  have 
been  used  in  rebuttal  was  allowed  to  be  introduced  in  examination- 
in-chief :  Fisher  v.  Ruch,  12  Pa.  Super.  240,  1899;  see  also  note  (24) 
(a2),  (d2),  above,  for  discretion  of  lower  court  as  to  order  of  admitting 
testimony;  (z)  or  where  answer  to  testimony  which  court  refused  to 
strike  out,  when  taken  in  connection  with  other  testimony,  could  not 
have  harmed  appellant:  McKnight  v.  Newell,  207  Pa.  562,  1904;  (a2) 
or  where  paper  is  offered  to  be  followed  by  other  proof  which  is  not 
produced,  if  paper  did  no  harm  and  there  was  no  motion  to  strike  out 
or  instruct  jury  to  disregard  it :  Schmeitzer  v.  Williams,  43  Pa,  Super. 
202. 

(26)  —  Exclusion  of  Evidence,  (a)  Appellate  court  will  not  re- 
verse where  evidence  erroneously  excluded  would  not  have  benefited 
appellant  if  admitted :  Ely  v.  Hager,  3  Pa.  154,  1846 ;  Irwin  v.  Trego, 
22  Pa.  368,  1853;  Evans  v.  See,  23  Pa.  88,  1854;  Wright  v.  Wood, 

378 


REVIEW  ON  APPEAL. 


§§228-31]  Harmless  Error — Excluding  Evidence      §228  (26)  (a) -(27) 

23  Pa.  120,  1854;  Thomas  v.  Mann,  28  Pa.  520,  1857;  Walthour  v. 
Spangler,  31  Pa.  523, 1858;  Hill  v.  Meyers,  43  Pa.  170, 1862;  Huber  v. 
Townsend,  34  L.  I.  178,  1877;  Galbraith  v.  Zimmerman,  100  Pa.  374, 
1882;  Zeigler  v.  Handrick,  106  Pa.  87,  1884;  Hoar  v.  Leaman,  15  Atl. 
716,  1888;  Worrall  v.  Pyle,  132  Pa.  529,  1890;  Collins  v.  Houston,  138 
Pa.  481, 1891;  Commonwealth  Title  Ins.  Co.  v.  Gray,  150  Pa.  255, 1892; 
Coates  v.  Wallace,  4  Pa.  Super.  253,  1897;  Powell  v.  Derickson,  178 
Pa.  612,  1897;  (b)  evidence  which  has  been  improperly  rejected  but 
subsequently  admitted  or  where  the  party  later  testifies  to  substanti- 
ally the  same  facts,  it  is  not  ground  for  reversal :  Grouse  v.  Miller,  10 
S.  &  R.  155, 1823;  D'Homergue  v.  Morgan,  3  Whar.  26, 1837;  Smull  v. 
Jones,  6  W.  &  S.  122, 1843;  Wertz  v.  May,  21  Pa.  274,  1853;  Rogers  v. 
Kichline,  36  Pa.  293, 1861;  Worrall  v.  Pyle,  132  Pa.  529, 1890;  Collins 
v.  Houston,  138  Pa.  481,  1891;  Commonwealth  Title  Co.  v.  Gray,  150 
Pa.  255, 1892;  Nesbitt  v.  Turner,  155  Pa.  429,  1893;  Mitchell  v.  Logan, 
37  W.  N.  C.  398,  1896;  Powell  v.  Ins.  Co.,  2  Pa.  Super.  151,  1896; 
Coates  v.  Wallace,  4  Pa.  Super.  253,  1897;  Spotts  v.  Spotts,  4  Pa. 
Super.  448,  1897;  Powell  v.  Derickson,  178  Pa.  612,  1897;  Com.  v. 
Little,  12  Pa.  Super.  636,  1899;  Acklin  v.  Oil  Co.,  201  Pa.  257,  1902; 
Fitzpatrick  v.  Traction  Co.,  206  Pa.  335,  1903;  Hicks  v.  Harbison 
Co.,  212  Pa.  437,  1905;  Hollidaysburg  Seminary  v.  Gray,  45  Pa.  Su- 
per. 426,  1911;  (c)  rejection  of  competent  evidence  is  harmless 
where  offer  was  as  to  condition  of  injured  plaintiff  and  jury  found 
for  defendant:  Bernstein  v.  Ernst,  194  Pa.  432,  1900;  (d)  or  where 
complaining  party  was  given  every  benefit  that  admission  of  evidence 
would  have  given  him :  Sheehan  v.  Rosen,  12  Pa.  Super.  298, 1899 ;  (e) 
or  where  offer  related  to  damages  caused  by  failure  of  plaintiff  to  de- 
liver goods  within  reasonable  time,  when  jury  found  they  were  deliv- 
ered within  time:  McHenry  v.  Bulifant,  207  Pa.  15, 1903;  (f)  or  where 
offer  was  to  prove  a  fact  afterwards  found  in  favor  of  party  making 
offer:  Wright  v.  Wood,  23  Pa.  120, 1854;  (g)  or  where  it  could  not  have 
changed  the  result:  see  cases  (a),  above;  (h)  or  where  evidence  would 
have  entitled  the  party  at  most  to  merely  nominal  damages:  Hosie  v. 
Gray,  71  Pa.  198,  1872;  (i)  or  where  offer  was  to  prove  an  impossible 
fact:  Cauley  v.  R.  R.,  98  Pa.  498, 1881;  (j)  or  where  deposition  offered 
would  have  been  insufficient  to  prove  fact  for  which  it  was  offered: 
Galbraith  v.  Zimmerman,  100  Pa.  374,  1882. 

(27)     —  Irregularities  in  Pleadings,    (a)  Irregularities  in  pleadings 
are  considered  harmless  error  when  it  clearly  appears  that  appellant 

379 


REVIEW  ON  APPEAL. 


§228  (27)  (a)-(28)  (g)  Harmless  Error— Pleadings  [Chap.  15, 

was  not  prejudiced  thereby:  Com.  v.  Pennock,  3  S.  &  R.  199,  1817; 
Gates  v.  Johnston,  3  Pa.  52, 1846 ;  Com.  v.  McWilliams,  11  Pa.  61, 1849 ; 
Harley  v.  Ins.  Co.,  21  W.  N.  C.  403,  1888;  Scranton  Sch.  Dist.  v. 
Simpson,  133  Pa.  202,  1890;  (b)  and  to  take  advantage  of  such  ir- 
regularities in  such  case,  appellant  must  show  affirmatively  that  he 
was  injured:  Kiser  v.  Vanleer,  2  W.  N.  C.  561,  1874;  (c)  otherwise 
such  formal  defects  will  be  treated  as  amended  on  appeal:  Harley  v. 
Ins.  Co.,  21  W.  N.  C.  403,  1888;  (d)  thus  a  decree  dismissing  bill  in 
equity  will  not  be  reversed  because  amendment  was  refused,  where  it 
appears  allowance  thereof  would  not  have  changed  the  result :  Yocum 
v.  Bank,  195  Pa.  411,  1900;  (e)  and  irregularity  in  granting  prelimi- 
nary rule  in  mandamus  will  be  considered  harmless  where  the  right 
is  clear:  Com.  v.  Fleming,  23  Pa.  Super.  404,  1903;  (f)  refusal  to  sub- 
stitute parties  in  action  is  harmless  if  appellant  was  not  affected: 
Dotts  v.  Fetzer,  9  Pa.  88,  1848;  Alden  v.  Grove,  18  Pa.  377,  1852;  (g) 
so  also  an  allowance  of  plea  in  abatement  during  trial:  Murphy  v. 
Chase,  103  Pa.  260,  1883;  (h)  neglect  to  file  replication  is  harmless 
where  trial  was  had  on  merits:  Thompson  v.  Cross,  16  S.  &  E.  350, 
1827;  Bailey  v.  Coal  Co.,  139  Pa.  213,  1891;  (i)  or  making  petitioner 
plaintiff  instead  of  defendant  in  issue  in  ejectment  under  Act  June 
10,  1893,  P.  L.  415,  4  Purd.  3992,  pi.  7,  if  no  damage  is  shown :  Kimmel 
v.  Shaffer,  219  Pa.  375, 1908;  (j)  a  statement  in  pleadings  which  would 
have  been  fatal  on  demurrer  is  cured  by  verdict  where  issue  was  such 
as  necessarily  required  proof  of  omitted  fact:  Weinberger  v.  Shelly, 
6  W.  &  S.  336, 1843;  Quick  v.  Miller,  103  Pa.  67, 1883;  see  §232. 

(28)  —  Clerical  Errors.  There  will  be  no  reversal  for  clerical  errors 
which  do  not  harm  appellant.  For  example,  (a)  a  mistake  in  caption 
as  to  term  and  number:  Centreville  Sch.  Dist.  Case,  3  W.  N.  C.  75, 
1875;  Com.  v.  Gibbons,  3  Pa.  Super.  408,  1897;  (b)  failure  to  enter 
judgment  on  record:  Shaw  v.  Boyd,  12  Pa.  215,  1849;  (c)  mistake  of 
trivial  amount  in  judgment:  McFait's  Ap.,  8  Pa.  290,  1848;  (d) 
clerical  errors  will  be  corrected  by  appellate  court:  Prevost  v. 
Nicholls,  4  Yeates,  479,  1808;  Peddle  v.  Hollinshead,  9  S.  &  R.  277, 
1832;  Flanigan  v.  Wetherill,  5  Whar.  280,  1839;  Guthrie  v.  Reid,  107 
Pa.  251,  1884;  Brothers  v.  Mitchell,  157  Pa.  484,  1893;  (e)  this 
applies  to  recognizance  of  bail  to  wrong  party:  Welch  v.  Vanbebber, 
4  Yeates  559,  1808 ;  (f )  defective  assignment  of  error  on  appeal :  Zim- 
merman v.  Camp,  155  Pa.  152,  1893;  (g)  or  irregular  order  of  dispo- 
sition of  case  in  lower  court:  Campbell  v.  Floyd,  153  Pa.  84,  1893; 

380 


REVIEW  ON  APPEAL. 


§§228-31]  Harmless  Error— Clerical— Trial       §  228  (28)  (h)-(29)  (m) 

(h)  but  tendency  of  appellate  court  is  to  allow  lower  court  to  amend 
its  own  record:  Park  v.  Holmes,  147  Pa.  497,  1892;  (i)  such  amend- 
ment will  not  be  allowed  after  a  long  period  of  time:  Ullery  v.  Clark, 
18  Pa.  148,  1852;  Seibert's  Ap.,  2  W.  N.  C.  557,  1874;  see  (12)  and 
(13),  this  section,  and  §232. 

(29)  —  Matters  Happening  on  Trial,  (a)  Judgment  will  not  be  re- 
versed for  harmless  error  in  the  charge:  see  cases  under  note  (20) 
(i),  et  seq.,  this  section;  (b)  or  because  court  gave  wrong  reason  for 
correct  decision :  Rupp  v.  Orr,  31  Pa.  517,  1858 ;  Susquehanna  Ins.  Co. 
v.  Gackenbach,  115  Pa.  492,  1886;  Wenger's  Est.,  2  Pa.  Super.  611, 
1896;  Jeanette  Mills  v.  Greenwalt,  11  Pa.  Super.  157,  1899;  Clegg  v. 
Steel  Co.,  34  Pa.  Super.  63,  1907;  see  also  cases  note  (2)  (h),  this  sec- 
tion; (c)  or  for  erroneous  refusal  to  allow  defendant  to  add  plea  of 
statute  of  limitations :  Schmoyer  v.  Schmoyer,  17  Pa.  520, 1851 ;  (d)  or 
to  allow  certain  evidence  to  be  taken  out  by  jury :  McCully  v.  Barr,  17 
S.  &  R.  445,  1828;  (e)  or  for  requiring  counsel  to  address  jury  in 
reverse  order:  Staub  v.  Wolfe,  4  Penny.  280,  1884;  Pittsburg  Engine 
Co.  v.  Mfg.  Co.,  43  Pa.  Super.  485,  489,  1910;  see  also  note  (24)  (j2), 
above ;  (f )  or  for  submitting  question  of  law  to  jury :  Pardee  v.  Orvis, 
103  Pa.  451, 1883;  Guthrie  v.  Reid,  107  Pa.  251, 1884;  (g)  or  mistake  in 
order  of  reference :  Christy 's  Ap.,  92  Pa.  157,  1879 ;  (h)  or  for  erron- 
eous grant  of  petition  to  review  account  of  administrator  more  than 
five  years  after  confirmation:  Jones's  Ap.,  99  Pa.  124,  1881;  (i)  court 
will  not  reverse  for  refusal  of  lower  court  to  withdraw  juror  for  im- 
proper remarks  of  counsel  when  verdict  was  not  excessive  and  court  in- 
structed jury  to  disregard  statements :  Moore  v.  Neubert,  21  Pa.  Super. 
144,  1902;  Shaffer  v.  Coleman,  35  Pa.  Super.  386,  1908;  Behrens  v. 
Mountz,  37  Pa.  Super.  326,  1908.  For  other  cases  on  remarks  of  coun- 
sel, see  note  (16),  above;  (j)  but  where  in  murder  case  clear  error 
appears  in  instructions,  appellate  court  can  not  say  as  matter  of  law 
that  no  harm  was  done:  Com.  v.  Deitrick,  218  Pa.  36,  1907;  (k)  court 
will  reverse  if  amount  of  former  verdict  or  award  is  mentioned  to  jury : 
Reese  v.  Hershey,  163  Pa.  253,  1894;  Quinn  v.  Transit  Co.,  224  Pa. 
162,  1909;  Hollinger  v.  R.  R.,  225  Pa.  419,  1909;  Carothers  v.  Ry.,  229 
Pa.  558,  1910;  Vivian  v.  Challenger,  45  Pa.  Super.  1,  1911;  (1)  unless 
it  clearly  appears  no  harm  was  done:  Williams  v.  Meadville,  31  Pa. 
Super.  580,  1906;  Brenisholtz  v.  R.  R.,  229  Pa.  1910;  (m)  superfluous 
wording  in  verdict  will  be  disregarded  and  verdict  treated  as  if  mould- 
ed in  proper  form  by  lower  court,  where  it  clearly  appears  what  jury 


REVIEW  ON  APPEAL. 


§228  (29)  (m)- (30)  (j)  Waiver  of  Error  [Chap.  15, 

intended:  Schmeitzer  v.  Williams,  43  Pa.  Super.  302,  1910;  see  also 
notes  (17)  (f),  (19)  and  (23),  above,  this  section. 

(30)  Waiver,  (a)  Where  a  party  has  failed  to  insist  on  a  legal 
right  or  to  except  to  a  refusal  of  the  trial  judge  to  grant  such  right, 
he  will  be  deemed  to  have  waived  it  and  cannot  set  it  up  on  appeal: 
Maus  v.  Maus,  6  Watts  275,  1837;  McLean  v.  Bindley,  114  Pa.  559, 
1886;  Bearmer's  Ap.,  126  Pa.  77, 1889;  (b)  this  rule  applies  to  defects 
in  pleadings:  Collum  v.  Andrews,  6  Watts  516,  1837;  State  Ins.  Co. 
v.  Todd,  83  Pa.  272,  1877;  Goodwin  v.  Slusher,  3  Sad.  464,  1886; 
Bandel  v.  Erickson,  3  Pa.  Super.  389, 1897 ;  McGonnigle  v.  McGonnigle, 
5  Pa.  Super.  168,  178,  1897;  Ellis  v.  Society,  16  Pa.  Super.  607,  1901; 
Schofield  v.  Lafferty,  17  Pa.  Super.  8,  1901;  (c)  mis-joinder  or  non- 
joinder of  parties:  Phila.,  W.  &  B.  B.  B.  v.  Conway,  112  Pa.  511, 1886; 
Kelley  v.  Kelley,  182  Pa.  131,  1897;  (d)  disposition  or  form  of  points 
reserved:  Northumberland  County  Bank  v.  Eyer,  60  Pa.  436,  1869; 
Yard  v.  Pancoast,  108  Pa.  384,  1884;  Brown  v.  Pittsburg,  1  Mona.  8, 
1888;  Headley  v.  Renner,  129  Pa.  542,  1889;  Fulton  v.  Peters,  137 
Pa.  613,  1890;  Blake  v.  Metzgar,  150  Pa.  291,  1892;  Heany  v.  Swartz, 
155  Pa.  154,  1893;  Ginther  v.  Boro.,  3  Pa.  Super.  403,  1897;  Evesson 
v.  Ziegf eld,  22  Pa.  Super.  79, 1903 ;  (e)  entry  of  conditional  judgment : 
Johnson  v.  Carver,  175  Pa.  200,  1896;  (f)  appearance  of  defendant 
waives  irregularity  in  process :  Stroup  v.  McClure,  4  Yeates  523,  1808 ; 
Benjamin  v.  Armstrong,  2  S.  &  R.  392,  1816;  Zion  Church  v.  St. 
Peters,  5  W.  &  S.  215,  1843;  Smith  v.  Hewson,  1  Am.  L.  Reg.  441, 
1852;  Sherer  v.  Bank,  33  Pa.  134,  1859;  Lorenz  v.  King,  38  Pa.  93, 
1861;  Memphis  v.  Wilcox,  48  Pa.  161,  1864;  Schober  v.  Mather,  49 
Pa.  21,  1865;  Lupton  v.  Moore,  101  Pa.  318,  1882;  Miller  v.  Warden, 
111  Pa.  300,  1886;  Wisecarver  v.  Braden,  146  Pa.  42,  1892;  Kennedy 
v.  Erdman,  150  Pa.  427,  1892;  Wright  v.  Milliken,  152  Pa.  507,  1893; 
(g)  allowing  affirmance  of  judgment  for  want  of  appearance  in  ap- 
peal from  justice  is  waiver  of  errors  in  proceedings  before  justice: 
Elkinton  v.  Fennimore,  13  Pa.  173,  1850;  (h)  when  before  close  of 
case  court  offers  to  admit  deposition  previously  improperly  rejected, 
failure  to  take  advantage  of  such  offer  is  waiver  of  right  to  assign 
prior  rejection  for  error:  D'Homergue  v.  Morgan,  3  Whar.  26,  1837; 
(i)  delay  in  asking  for  amendment  will  be  deemed  a  waiver:  Jackson 
v.  Thompson,  203  Pa.  622,  1902;  (j)  a  proceeding  adopted  at  instance 
of  party  cannot  be  assigned  as  error :  Wills  v.  Kane,  2  Grant  60,  1853 ; 
(k)  where  court  opens  judgment  on  terms  but  refuses  to  strike  it  off, 

382 


REVIEW  ON  APPEAL. 


§§228-31]  Waiver  of  Error  §  228  (30)  (k)-§229 

trial  of  case  is  not  a  waiver  by  defendant  of  right  to  object  to  refusal 
to  strike  off  judgment:  Post  v.  Wallace,  110  Pa.  121,  1885;  (1)  that 
another  party  to  action  has  waived  a  matter  intended  for  his  benefit 
alone,  cannot  be  assigned  for  error:  Prevost  v.  Nicholls,  4  Yeates, 
479,  1908;  (m)  voluntary  acceptance  of  decree  or  finding  is  waiver  of 
right  to  object  thereto:  Baily  v.  Baily,  44  Pa.  274,  1863;  Agnew's  Ap., 
3  Walk.  320,  1883;  Gibson's  Ap.,  108  Pa.  244,  1885;  Scranton  Bldg. 
Asso.  v.  Rauck,  9  Sad.  619,  1888;  (n)  agreement  by  counsel  to  waive 
exceptions  will  be  enforced :  Baring  v.  Shippen,  2  Bin.  154,  1809 ;  (o) 
failure  to  file  affidavit  that  appeal  is  not  for  delay  is  waived  by  failing 
to  object  and  depending  on  merit:  Heckert's  Ap.,  13  S.  &  R.  104, 1825. 

(31)  Estoppel,  (a)  Appellant  is  estopped  from  alleging  anything 
in  contradiction  of  the  record :  Werf  el  v.  Com.,  5  Binn.  65,  1812 ;  Brin- 
dle  v.  Mcllvaine,  9  S.  &  R.  74,  1822;  Taylor  v.  Com.,  44  Pa.  131, 
1862;  Com.  v.  Walter,  86  Pa.  15,  1877;  Hoar  v.  Flegal,  1  Penny.  208, 
1881;  Beringer  v.  Lutz,  179  Pa.  1,  1897;  (b)  one  who  has  examined 
an  account  and  asked  for  its  confirmation  cannot  appeal  on  ground  of 
error  in  distribution:  Sherwood's  Est.,  206  Pa.  465,  1903;  (c)  a  party 
may  not  complain  of  an  error  for  which  he  is  responsible  or  to  which 
he  contributed:  Pantall  v.  Iron  Co.,  204  Pa.  158,  1903;  (d)  and  one 
who  asked  for  binding  instructions  cannot  thereafter  complain  of  it: 
Pritchett  v.  Cook,  62  Pa.  193,  1869;  (e)  where  a  party  fails  to  insist 
on  his  right  to  a  continuance  on  account  of  absence  of  material  witness 
whose  evidence  was  first  rejected  but  subsequently  admitted,  and 
takes  his  chance  on  a  verdict,  he  cannot  subsequently  assign  the  re- 
jection of  the  testimony  as  error:  Welsh  v.  Speakman,  8  W.  &  S.  257, 
1844;  (f)  a  party  is  not  estopped  by  verbal  statement  of  counsel  as  to 
construction  of  writing  when  offering  such  writing  in  evidence:  Hoff- 
man v.  R.  R.,  143  Pa.  503,  1891;  s.  c.  157  Pa.  174,  1893;  (g)  where 
case  is  tried  before  court  without  a  jury  question  of  estoppel  is  one  of 
fact  for  court :  Fuller  v.  Weaver,  175  Pa.  182,  1896. 

§229.  Review  on  Merits  in  Appeals  from  Orphans' 
Court —  (A)  The  Supreme  Court  of  this  commonwealth 
shall,  in  all  cases  of  appeal  from  the  definitive  sentence  or 
decree  of  the  orphans'  court,  hear  and  determine  the  same 
as  to  right  and  justice  may  belong;  and  refer  the  same  to 

383 


REVIEW  ON  APPEAL. 


§229  Merits  in  Orphans'  Court  [Chap.  15, 

auditors  where,  in  their  discretion,  they  may  think  proper. 
Act  April  14,  1835,  §4,  P.  L.  276,  3  Purd.  3384,  pi.  69. 

(B)  It  shall  be  the  duty  of  the  Supreme  Court  of  this 
commonwealth  in  all  cases  of  appeals  now  made,  or  that 
may  hereafter  be  taken  from  the  decrees  of  the  several 
orphans'  court,  to  hear,  try  and  determine  the  merits  of 
such  cases,  and  to  decree  according  to  the  justice  and 
equity  thereof.  Act  June  16,  1836,  §2,  P.  L.  683,  3  Purd. 
3385,  pi.  70.  [Both  Acts  apply  to  Superior  Court  now.] 

(1)  Reference  to  Auditors — Rehearing,     (a)  The  Supreme  Court 
may  use  its  discretion  in  referring  case  to  auditors:  Hise's  Est.,  5 
Watts  157,  1836;  Shenck's  Ac.,  5  Watts  84,  1836;  Lentz's  Ac.,  5  Pa. 
103,  1847;  Eyster's  Ap.,  16  Pa.  372,  1851;  (b)  in  exercising  such  dis- 
cretion, the  court  should  be  governed  by  rules  regulating  granting  new 
trials  on  after-discovered  evidence:  Kittera's  Est.,  17  Pa.  416,  1832; 
(c)  court  may  also  award  issue  to  try  disputed  facts:  Walker's  Est., 
3  Rawle  243,  1832;   (d)  where  record  is  so  irregular  that  Supreme 
Court  cannot  decide  case,  it  may  refer  it  to  auditor  or  reverse  decree 
and  remit  record  for  further  hearing :  Stewart 's  Ap.,  86  Pa.  149,  1878. 

(2)  Review — Remanding  Case  to  Lower   Court,      (a)    Appellate 
court  will  re-examine  whole   proceedings,   even   though   no   writ   of 
error  has  been  taken  to  part,  and  will  decide  same  according  to  jus- 
tice and  equity  without  strict  regard  to  objections  taken  or  errors  as- 
signed: Finney's  Ap.,  37  Pa.  323,  1860;  Bierly's  Est.,  81*  Pa.  419, 
1876;  Christy's  Ap.,  92  Pa.  157,  1879;  Bull's  Ap.,  108  Pa.  604,  1885; 
Mulf air's  Ap.,  110  Pa.  402,  1885;  Drennan's  Est.,  118  Pa.  176,  1888; 
(b)  and  it  may  modify  decree  of  orphans'  court  by  reason  of  events 
occurring  since  decree:  Stone's  Ap.,  23  W.  N.  C.  283,  1889;   (c)  but 
court  will  not  reverse  unless  error  is  clearly  shown:  Eslen's  Est.,  30 
Pa.  Super.  475,  1906;  Compton's  Est.,  30  Pa.  Super.  605,  1906;  Yeag- 
er's  Est.,  31  Pa.  Super.  202,  1906;  (see  §228,  above,  note  (18)  (k)  and 
(1) ;    (d)    and  whole  proceeding  will   be   examined,   notwithstanding 
writ  of  error  taken  to  feigned  issue :  Hallowell  's  Ap.,  20  Pa.  215, 1848 ; 
(e)  and  latter  proceeding  may  be  re-examined  on  appeal  from  final 
decree,  though  no  writ  of  error  was  taken :  Finney  's  Ap.,  37  Pa.  323, 
1860;   (f)   after  affirmance,  record  is  returned  to  orphans'  court  for 
execution  only:  Robinson's  Ap.,  62  Pa.  213,  1869;  (g)  and  where  court 

384 


REVIEW  ON  APPEAL. 


§§228-31]  Capital  Cases  §230 

remands  case  for  purpose  of  taking  evidence  on  particular  point, 
lower  court  is  limited  by  such  order  and  cannot  review  entire  case: 
Brown's  Est.,  213  Pa.  604,  1906;  (h)  appellate  court,  on  finding  a 
trustee  insolvent,  will  order  him  to  enter  security  before  money  is  paid 
over  to  him:  Deaven's  Est.,  32  Pa.  Super.  205,  1907 j  (i)  the  Act  of 
1836  extends  only  to  appeals  from  orphans'  court  and  not  to  appeals 
from  report  of  auditors  in  insolvent  estate:  Stoever's  Ap.,  3  W.  &  S. 
154,  1842. 

§230.    —  Review  of  Law  and  Evidence  in  Capital  Cases. 

In  all  cases  of  murder  in  the  first  degree,  removed  into  the 
Supreme  Court  under  the  provisions  of  the  first  section  of 
this  act,  or  now  pending  in  the  said  court,  it  shall  be  the 
duty  of  the  judges  thereof  to  review  both  the  law  and  the 
evidence,  and  to  determine  whether  the  ingredients  neces- 
sary to  constitute  murder  in  the  first  degree  shall  have 
been  proved  to  exist;  and  if  not  so  proved,  then  to  reverse 
the  judgment  and  send  the  same  back  for  a  new  trial,  or  to 
enter  such  judgment  as  the  laws  of  this  commonwealth  re- 
quire. Act  Feb.  15,  1870,  §2,  P.  L.  15,  2  Purd.  1465,  pi.  89. 

(1)  Criminal  Cases — Review  of  Evidence,  (a)  Under  Act  of  Feb. 
15,  1870,  P.  L.  15,  above,  the  appellate  court  may  review  the  law 
and  the  evidence  in  cases  of  first  degree  murder,  and  may  either 
send  the  case  back  for  a  new  trial  or  enter  such  judgment  as  they 
may  deem  proper:  Staup  v.  Com.,  74  Pa.  458,  1874;  Jones  v.  Com., 
75  Pa.  403,  1874;  MeGinnis  v.  Com.,  102  Pa.  66,  1883;  (b)  but  in 
such  cases  court  can  not  review  question  of  guilt  or  innocence  and  say 
whether  or  not  the  evidence  should  have  been  believed,  but  will  only 
determine  whether  or  not  ingredients  of  first  degree  murder  exist: 
Grant  v.  Com.,  71  Pa.  495, 1872;  Staup  v.  Com.,  74  Pa.  458,  1873;  Mc- 
Cue  v.  Com.,  78  Pa.  185, 1875 ;  Meyers  v.  Com.,  83  Pa.  171,  1876 ;  Com. 
v.  Morrison,  193  Pa.  613,  1899;  Com.  v.  Bubnis,  197  Pa.  542,  1901; 
Com.  v.  Garrito,  222  Pa.  304,  1908;  (see  also  §§149,  151  and  notes) ; 
(c)  in  other  criminal  cases,  court  will  not  review  sufficiency  of  evi- 
dence, but  will  follow  the  rules  applicable  to  review  of  civil  cases  and 
will  consider  only  matters  excepted  to  and  made  part  of  the  record: 
Vanpool  v.  Com.,  13  Pa.  391, 1850;  (see  §228,  note  (18),  and  §§149  and 

385 
25 


REVIEW  ON  APPEAL. 


§231  Road  Cases  [Chap.  15, 

151) ;  (d)  where  evidence  is  not  before  appellate  court,  it  cannot  re- 
verse on  the  ground  that  the  crime  as  shown  by  evidence  does  not 
amount  to  that  charged  in  indictment :  Com.  v.  Moore,  99  Pa.  570, 1882 ; 

(e)  when  defendant  has  been  acquitted  of  felony,  appellate  court  can- 
not reverse  and  award  new  trial :  Com.  v.  Steimling,  156  Pa.  400,  1893 ; 

(f)  on  appeal  in  extradition,  only  regularity  of  proceedings  will  be 
considered:  Thatcher's  Case,  18  Pa.  Super.  533,  1902;  Com.  v.  Supt. 
County  Prison,  33  Pa.  Super.  594,  1907;  Com.  v.  Hare,  36  Pa.  Super. 
125,  1908;    (g)   an  erroneous  sentence  may  be  corrected  or  may  be 
reversed  and  sent  back  for  proper  sentence  without  affecting  trial 
and  conviction:  Drew  v.  Com.,  1  Whar.  279,  1835;  Daniels  v.  Com., 
7  Pa.  371,  1848;  Johnson  v.  Com.,  24  Pa.  386,  1855;  Beale  v.  Com., 
25  Pa.  11,  1855;  Com.  v.  Barge,  11  Pa.  Super.  164,  1899;  Com.  v. 
Shoener,    25    Pa.    Super.   526,    1904;    (h)    where    one    term    of    im- 
prisonment is  made  to  begin  at  end  of  another  and  judgment  in  first 
term  is  reversed,  court  may  change  beginning  of  second  term:  Mills 
v.  Com.,  13  Pa.  630,  1850. 

§231.  — Merits  of  Case  not  to  be  Considered  in  Road 
Cases.  Where  an  appeal  is  taken  from  any  order,  judg- 
ment or  proceedings  in  relation  to  a  public  or  private  road, 
the  appellate  court  will  not  consider  the  merits  of  the  case 
nor  reverse  the  order  of  the  court  of  quarter  sessions,  ex- 
cept for  some  irregularity  apparent  on  the  record,  or  be- 
cause the  court  below  have  exceeded  their  jurisdiction,  or 
have  erred  in  their  judgment  in  point  of  law.  See  note  be- 
low. 

(1)  Merits  not  Eeviewable.  (a)  In  appeals  in  road  cases,  merits  of 
case  will  not  be  considered,  and  court  will  reverse  only  for  irregu- 
larity of  record,  want  of  jurisdiction  or  error  in  point  of  law :  Hamil- 
ton St.  Case,  148  Pa.  640,  1892;  Keller's  Private  Eoad,  154  Pa.  547, 
1893;  Jefferson  Twp.  Road,  3  Pa.  Super.  467,  1897;  Glenfield  Boro. 
Road,  5  Pa.  Super.  222,  1897;  Shetler's  Ap.,  7  Pa.  Super.  548,  1898; 
Manheim  Twp.  Road,  12  Pa,  Super.  279,  1899 ;  Dennison  Twp.  Road,  13 
Pa.  Super.  227,  1900;  Fifty-fifth  St.  Case,  16  Pa.  Super.  133,  1901; 
Hector  Twp.  Road,  19  Pa.  Super.  1,  1902;  Stowe  Twp.,  20  Pa. 
Super.  404,  1902;  Rostraver  Rd.,  21  Pa.  Super.  195,  1902;  West  Done- 
gal Twp.  Road,  21  Pa.  Super.  620,  1902;  Daughters  of  Revolution  v. 

386 


REVIEW  ON  APPEAL. 


§§228-31]  Road  Cases  §231 

Schenley,  204  Pa.  572, 1903 ;  West  Pikeland  Twp.  Road,  38  Pa.  Super. 
466,  1909;  (b)  question  of  damages  cannot  be  considered  but  must  be 
settled  by  appeal  to  common  pleas:  Morrison's  Cove  Tpk.  Rd.,  30 
Pa.  Super.  51,  1906. 


387 


AMENDMENTS. 


§232  (1)  (a)- (b)  What  Defects  Amendable  [Chap.  16, 


CHAPTER  XVI. 

AMENDMENTS QUASHING NON-PROS ABATEMENT 

DISCONTINUANCE. 

§232.  Amendments. 

§233.  Quashing  writ. 

§234.  Non-Pros—Non-Suit. 

§235.  Abatement — Action  to  Survive  to  Personal  Representatives. 

§236.  Discontinuance. 

§  232.  Amendments.  All  writs  of  error  wherein  there 
shall  be  any  variance  from  the  original  record,  may  be 
amended  and  made  agreeable  to  such  record  by  the  respec- 
tive courts  where  such  writs  of  error  were  made  return- 
able. Statute  of  5  Geo.  I,  c.  13,  Rob.  Dig.  48. 

(1)  Defects  Amendable,  (a)  Recognizance  of  bail  to  wrong  party: 
Welch  v.  Vanbebber,  4  Yeates  559,  1808;  (b)  suggestion  of  death  of 
party  and  substitution  of  representative:  Prevost  v.  Nichols,  4 
Yeates  479,  1808;  Hill  v.  Wist,  1  Bin.  486,  1808;  Darlington 
v.  Speakman,  9  W.  &  S.  182, 1845;  (c)  insertion  of  too  many  plaintiffs: 
Guhr  v.  Chambers,  8  S.  &  R.  157,  1822;  (d)  wrong  description  of  par- 
ties on  record:  Finney  v.  Crawford,  2  Watts  294,  1834;  (e)  mis- 
joinder  or  non-joinder  of  parties:  Hoskinson  v.  Elliot,  62  Pa.  393, 
1869;  Fritz  v.  Heyl,  93  Pa.  77, 1880;  Feig  v.  Meyers,  13  W.  N.  C.  123, 
1882;  (f)  in  action  for  death  of  infant  under  Act  April  26,  1855,  P. 
L.  309,  3  Purd.  3241,  pi.  4,  where  recovery  was  had  in  name  of  father 
alone,  record  may  be  amended  after  trial  and  verdict  by  joining  mother 
as  plaintiff:  Bracken  v.  R.  R.,  32  Pa.  Super.  22,  1907;  Davis  v.  R.  R., 
34  Pa.  Super.  388,  1907;  (g)  and  such  amendment  may  be  made  even 
after  appeal  and  reversal,  on  case  being  called  for  second  trial: 
Bracken  v.  R.  R.,  222  Pa.  410,  1909;  (h)  omission  of  month  in  writ: 
Mossman  v.  Higginson,  4  Dall.  12,  1800;  Reed  v.  Collins,  5  S.  &  R. 
351,  1819;  (i)  omission  in  writ  of  levari  facias  of  command  to  levy: 

388 


AMENDMENTS — QUASHING  WRITS. 


§§  232-6]  What  Defects  Amendable— Waiver      §  232  ( 1 )  ( i )  -§  233 

Peddle  v.  Hollinshead,  9  S.  &  R.  277,  1823;  (j)  form  of  verdict  in  at- 
tachment :  Flanagin  v.  Wetherill,  5  Whart.  280,  1840 ;  (k)  liquidation 
of  judgments  against  partners  before  final  disposition  of  case :  Camp- 
bell v.  Floyd,  153  Pa.  84,  1893;  (1)  evidence  in  full  not  given  in  as- 
signment of  error:  Zimmerman  v.  Camp,  155  Pa.  152,  1893;  (m) 
counts  in  declaration,  additional  counts  being  presumed  to  have  been 
filed  with  leave  of  court  below,  record  not  showing  contrary:  Good- 
man v.  Gay,  15  Pa.  188,  1850;  (n)  amount  of  damages  laid,  where 
justice  requires  it:  Trego  v.  Lewis,  58  Pa.  463,  1865;  (o)  failure  to  file 
declaration:  Jones  v.  Freyer,  3  W.  N.  C.  365,  1877;  (p)  statement  not 
conforming  to  evidence:  Kroegher  v.  McConway  Torley  Co.,  149  Pa. 
444,  1892;  Kirchner  v.  Smith,  207  Pa.  431,  1904;  Elder  Twp.  Dist.  v. 
R.  R.,  26  Pa.  Super.  112,  1904;  (q)  praecipe  in  ejectment:  Brothers  v. 
Mitchell,  157  Pa.  484,  1893;  see  also  §228,  notes  (12),  (13),  (27)  and 
(28),  in  regard  to  clerical  and  technical  errors. 

(2)  Defects  not  Amendable,      (a)    After  long  period  of  time: 
Ullery  v.  Clark,  18  Pa.  148, 1851;  Seibert's  Ap.,  2  W.  N.  C.  557,  1876; 
(b)  amendments  which  will  supersede  original  proceedings:  Seibert's 
Ap.,  2  W.  N.  C.  557,  1876;  (c)  record  of  court  below  when  it  would 
be  unfair  to  appellant :  Park  v.  Holmes,  147  Pa.  497,  1892. 

(3)  Waiver  of  Objection  to  Amendment,     (a)  Record  may  be 
amended  by  court  below  after  issuing  of  writ  and  before  return-day 
if  record  has  not   actually  been  removed  and   any  irregularity  is 
waived  unless  objected  to  at  time  of  hearing  in  Supreme  Court: 
Church's  Ap.,  103  Pa.  263,  1883;  Gunn  v.  Bowers,  126  Pa.  552,  1889; 
Green  v.  Paint  Co.,  25  Pa.  Super.  415,  1904;  (b)  record  removed  on 
writ  of  error  is  still  within  reach  of  court  below  until  return-day  for 
purpose  of  amending  clerical  or  unquestionable  errors:  Gunn  v.  Bow- 
ers, 126  Pa.  552,  1889. 

§233.  Quashing  Writ.  In  general,  a  writ  may  be 
quashed  for  any  defect  or  irregularity  in  the  proceedings 
which  cannot  be  amended,  or  for  any  matters  which  estop 
appellant  from  prosecuting  his  appeal.  This  is  usually  done 
by  motion  of  counsel  made  at  the  proper  time,  although  it 
may  be  by  suggestion  of  the  appellate  court.  For  reference 
to  Acts  of  Assembly  or  rules  of  court  providing  for  quash- 

389 


QUASHING — NON-PROS — ABATEMENT. 


§§233-5  Time    for    Quashing,    etc.  [Chap.  16, 

ing  of  writ  for  failure  to  comply  therewith,  see  index,  under 
appropriate  subjects. 

(1)  Time  for  Quashing — Practice,     (a)   A  copy  of  the  motion 
should  be  served  on  the  attorney  for  the  opposite  party.     As  argu- 
ment on  motion  to  quash  and  on  the  appeal  will  usually  be  heard  at 
the  same  time,  i.  e.,  when  the  case  is  reached  on  the  regular  list,  two 
sets  of  paper-books  should  be  prepared,  one  on  the  motion  to  quash 
and  the  other  on  the  merits  of  the  appeal.    When  error  is  apparent  on 
record,  writ  may  be  quashed  before  return-day:  Davis  v.  Hood,  13 
Pa.  171,  1850;    (b)   lapse  of  two  terms  will  bar  motion  to  quash: 
Cooke  v.  Reinhart,  1  Rawle  317,  1829;   (c)  but  motion  to  quash  on 
ground  that  writ  issued  for  purpose  of  delay  will  not  be  considered 
until  case  is  reached  on  regular  list :  Moodie  v.  Bank,  1  W.  N.  C.  324, 
1875;  Seymour  v.  Herbert,  2  W.  N.  C.  363,  1876. 

(2)  Motion  by  Court,     (a)  Motion  to  quash  may  be  suggested  by 
court :  Ewing  v.  Filley,  43  Pa.  384,  1862 ;  (b)  especially  if  injustice  is 
likely  to  be  done :  Downing  v.  Baldwin,  1  S.  &  R.  298, 1815. 

(3)  Eights  of  Third  Parties.    On  motion  to  quash,  only  rights  of 
parties  will  be  considered  and  not  rights  of  creditors:  Gallagher  v. 
Miller,  2  W.  N.  C.  241,  1876. 

For  cases  illustrating  grounds  for  quashing  for  non-compliance  with 
Acts  of  Assembly  and  rules  of  court  relating  to  practice,  see  respec- 
tive headings. 

§234.     Non-Pros.     The  Superior  Court  may  non-pros 

any  suit  for  want  of  due  prosecution Act  June 

24,  1895,  §8,  P.  L.  212,  4  Purd.  4504,  pi.  37. 

(1)  Provisions  as  to  Non-Pros.  For  reference  to  Acts  of  Assembly 
and  rules  of  court  directing  the  entry  of  a  non-pros  or  non-suit  for 
failure  to  comply  therewith,  see  index. 

§235.  Abatement — Action  to  Survive  to  Personal  Rep- 
resentatives. The  executors  or  administrators  of  any  per- 
son who,  at  the  time  of  his  decease,  was  a  party  plaintiff, 
petitioner  or  defendant  in  any  action  or  legal  proceeding, 
depending  in  any  court  of  this  commonwealth,  shall  have 

390 


ABATEMENT — DISCONTINUANCE. 


§§  232-6]  Substitution,  etc.  §§  235-6 

the  full  power,  if  the  cause  of  action  doth  by  law  survive  to 
them,  to  become  party  thereto,  and  prosecute  or  defend 
such  suit  or  proceedings  to  final  judgment  or  decree,  as 
fully  as  such  decedent  might  have  done  if  he  had  lived; 
and  if  such  plaintiff  or  petitioner  die  after  judgment  or  de- 
cree in  his  favor,  his  executors  or  administrators  may  pro- 
ceed to  execution  thereupon,  as  such  plaintiff  or  petitioner 
might  have  done  if  he  had  lived.  Act  Feb.  24,  1834,  §26, 
P.  L.  77,  i  Purd.  226,  pi.  4. 

(1)  Substitution  of  Executor,  (a)  The  executor  may  be  substi- 
tuted without  sci.  fa.  by  suggesting  the  death  upon  the  record:  Deiser 
v.  Sterling,  10  S.  &  E.  119,  1823;  Fritz  v.  Evans,  13  S.  &  R.  9,  1825; 
Gemmill  v.  Butler,  4  Pa.  232,  1846;  Wallace  v.  Holmes,  40  Pa.  427, 
1861;  Ulshafer  v.  Stewart,  71  Pa.  170,  1872;  (b)  substitution  may  be 
made  at  any  time:  Reist  v.  Heilbrenner,  11  S.  &  R.  131,  1824;  (c)  and 
administrator  de  bonis  non  may  be  substituted  in  judgment  obtained 
by  his  predecessor:  Leo  v.  Hopkins,  7  Pa.  385,  1847;  see  also  §43,  note 
(10). 

§236.  Discontinuance — May  be  Filed  before  Return- 
Day.  A  formal  discontinuance  may  be  filed  by  appellant 
at  any  time  before  the  return-day  of  the  writ,  and  the  case 
will  be  stricken  from  the  list  by  the  prothonotary. 

(1)  Form.    For  form,  see  Appendix  §62. 

(2)  Discontinuance  after  Argument.     After  case  has  been  argued 
and  is  sub  judice,  discontinuance  will  not  be  granted  where  motion  is 
opposed  by  appellee,  and  would  apparently  be  to  his  prejudice :  Saint 
v.  Cornwall,  207  Pa.  270, 1903. 


391 


APPELLATE  JURISDICTION — LIEN. 


§§237-8  To  be  Noted  and  Transmitted  [Chap.  17, 

CHAPTER  XVII. 

JUDGMENT COSTS PENALTIES RESTITUTION REMITTITUR. 

§237.    Judgment  to  be  Noted  and  Transmitted  to  Prothonotary  of 

Court  from  which  Appeal  Was  Taken. 
§238.    Lien  of  Judgment. 

(A)  When  Lien  Becomes  Effective. 

(B)  Release  of  Lien  of  Judgment  of  Lower  Court  on  Taking 

Appeal — Bail. 
§239.    Costs. 

(A)  To  be  Paid  by  Losing  Party. 

(B)  Payment  by  County  in  Murder  Cases  against  Destitute 

Defendants. 

§240.        Paper-Books —  Printing. 
§241.        Special  Writs  and  Petitions. 

§242.    Penalties — Appeals  for  Delay — Additional  Attorney  Fee — In- 
terest. 

§243.    Restitution. 
§244.    Remittitur — Copy  of  Opinion  to  be  Sent  to  Lower  Court. 

§237.  Judgment  to  be  Noted  and  Transmitted  to  Pro- 
thonotary of  Court  in  which  Appeal  Was  Entered.  Every 
judgment,  order  or  decree  of  this  court  shall  be  noted  by 
the  prothonotary  on  the  minute  book  kept  at  the  place 
where  the  court  shall  be  in  session,  at  the  time,  and,  to- 
gether with  the  opinion  or  opinions  filed  therewith,  be 
forthwith  transmitted  to,  and  entered  of  record  by,  the 
prothonotary  in  whose  office  the  appeal  was  entered.  Su- 
perior Court  Rule  13. 

§238.  Lien  of  Judgment — (A)  When  Lien  Becomes  Ef- 
fective. No  judgment  rendered  in  the  Supreme  Court  shall 

392 


LIEN  OF  JUDGMENTS. 


§§  237-44]  When  Effective— Bail  §  238 

be  a  lien  on  real  estates,  excepting  in  the.  county  in  which 
such  judgment  shall  be  rendered.  Act  March  20,  1799,  §14, 
3  Sm.  L.  358,  2  Purd.  2047,  pi-  23. 

No  judgment  or  decree  for  the  payment  of  money,  which 
is  entered  for  the  first  time  by  the  Superior  Court,  shall  be 
a  lien  until  the  record  is  returned  to  the  court  below,  when, 
at  the  request  of  any  person  interested  in  said  judgment  or 
decree,  it  shall  be  entered  by  the  prothonotary  upon  the 
proper  dockets,  and  from  the  time  of  such  entry  shall  be  a 
lien.  But  if  an  appeal  is  taken  to  the  Supreme  Court  from 
such  judgment  or  decree  for  the  payment  of  money  thus 
entered  for  the  first  time  by  the  Superior  Court,  so  that  the 
record  cannot  immediately  be  returned  to  the  court  below, 
a  certificate  of  such  judgment  or  decree  shall,  at  the  re- 
quest of  any  person  interested  therein,  be  made  by  the  pro- 
thonotary of  the  Superior  Court  and  be  entered  in  the 
proper  dockets  by  the  prothonotary  of  the  county  from 
which  the  appeal  is  taken  and  from  the  time  of  such  entry 
it  shall  be  a  lien.  Act  June  24,  1895,  §3,  P.  L.  212,  4  Purd. 
4504,  pi.  36. 

— (B)  Release  of  Lien  of  Judgment  of  Lower  Court  on 
Taking  Appeal. — Bail.  Hereafter  it  shall  be  lawful  for  any 
one  against  whom  an  order,  judgment  or  decree  directing 
the  payment  of  money  shall  have  been  made  by  any  court 
of  record  of  this  commonwealth,  upon  taking  or  entering 
an  appeal  to  the  Superior  Court  or  the  Supreme  Court  of 
this  commonwealth,  to  enter  bail  in  the  court  below  in 
double  the  amount  of  such  order,  judgment  or  decree,  with 
security  to  be  approved  by  the  said  court,  conditioned  for 
the  payment  of  the  amount  finally  adjudged  to  be  due  upon 
such  order,  judgment  or  decree,  including  interest  and 
costs;  or  that  the  appellant  in  such  cases  may,  in  lieu  of 
entering  such  bail,  deposit  with  the  prothonotary  of  the 

393 


LIEN  OF  JUDGMENTS. 


§§238-9  Bail — Costs  [Chap.  17, 

said  court  below,  in  cash,  such  amount  as  the  said  court 
shall  upon  petition,  deem  to  be  sufficient  to  insure  the  pay- 
ment of  the  amount  finally  adjudged  to  be  due  and  owing 
upon  said  order,  judgment  or  decree;  and,  in  either  case, 
upon  the  entry  of  said  bail  or  the  deposit  of  money,  as 
aforesaid,  and  upon  the  said  appeal  being  perfected,  the 
said  judgment  and  the  verdict,  when  such  judgment  has 
been  entered  on  a  verdict,  order  or  decree,  shall  cease  to  be 
a  lien  against  the  real  estate  of  the  appellant;  and  the  pro- 
thonotary  or  clerk  of  the  said  court  shall  thereupon  mark 
upon  the  docket  and  upon  the  margin  of  the  judgment 
index,  "appeal  perfected;  lien  discharged:"  Provided,  how- 
ever, That  upon  the  return  of  the  record  of  such  judgment, 
order  or  decree  to  the  said  court  below,  with  a  remittitur 
certifying  the  said  judgment,  order  or  decree  to  have  been 
affirmed  in  whole  or  in  part,  the  prothonotary  shall  there- 
upon enter  judgment,  as  of  that  date  against  the  appellant 
for  the  amount  due  upon  the  said  judgment,  order  or  de- 
cree as  affirmed,  with  interest  and  costs  as  provided  by 
law.  Act  April  22,  1909,  §i,  P.  L.  103,  5  Purd.  5467,  pi.  i. 

§  239.  Costs — (A)  To  be  Paid  by  Losing  Party.  The 
costs  in  any  appealed  cause  shall  consist  of  the  amount  paid 
the  prothonotary  or  clerk  of  the  court  below  and  of  the  ap- 
pellate courts,  and  an  attorney  fee  of  three  dollars  in  each 
court  to  which  any  appeal  is  taken.  Such  costs  shall  be 
paid  by  the  party  finally  losing  the  cause,  except  as  herein 
otherwise  provided,  and  in  equitable  proceedings  where 
the  court  shall  otherwise  direct.  Act  May  19,  1897,  §21,  P. 
L.  67,  2  Purd.  1451,  pi.  69. 

—  (B)  Payment  by  County  in  Murder  Cases  Against 
Destitute  Defendants.  When  any  person  shall  have  been 
indicted  on  a  charge  of  murder,  and  when,  on  account  of 

394 


COSTS. 
§§237-44]  When  Allowed  §  239  (1)  (a)-(g) 

the  destitute  circumstances  of  such  person,  counsel  shall 
have  been  assigned  to  him  or  to  her,  and  when  upon  trial 
such  person  shall  have  been  convicted  of  murder  in  the 
first  degree,  and  such  counsel  shall  deem  it  necessary  to 
appeal  to  the  Supreme  Court,  a  statement  of  the  costs  of 
such  appeal,  including  the  cost  of  printing  the  paper-book, 
sworn  to  by  such  counsel,  shall  be  filed  in  the  office  of  the 
clerk  of  the  court  of  quarter  sessions  of  the  proper  county; 
and  such  costs  shall  be  paid  by  the  treasurer  of  such  county, 
or,  where  any  city  is  co-extensive  with  such  county,  then 
by  the  treasurer  of  such  city.  Such  costs  shall  not  be  paid 
unless  such  statement  be  accompanied  by  a  certificate  of 
the  judge  who  shall  have  presided  at  such  trial,  setting 
forth  the  fact  of  such  appointment  of  counsel,  and  the  fact 
that  such  appeal  was  taken.  Act  June  3,  1911,  §i,  P.  L. 
627. 

(1)  When  Costs  are  Allowed,  (a)  Judgment  of  reversal,  without 
awarding  new  venire  or  entering  judgment  for  costs,  does  not  carry 
costs:  Wright  v.  Small,  5  Binn.  204,  1812;  Smith  v.  Sharp,  5  Watts 
292,  1836;  Cameron  v.  Paul,  11  Pa.  277,  1849;  Fries  v.  Penna.  R.  R., 
98  Pa.  142, 1881;  Wrasse  v.  Traction  Co.,  146  Pa.  417,  427, 1892;  Ellis 
v.  Ins.  Co.,  9  Pa.  Super.  392,  1899;  (b)  but  appellate  court  may 
amend  its  record  so  that  judgment  shall  carry  costs:  Ellis  v.  Ins. 
Co.,  9  Pa.  Super.  392,  1899;  (c)  no  costs  can  be  recovered  on  reversal 
of  judgment  for  want  of  jurisdiction:  Beam  v.  Warfel,  9  Lane.  Bar 
185,  1878;  (d)  plaintiff  who  pays  fees  of  prothonotary  of  appellate 
court  to  secure  remittitur  after  reversal,  must  recover  from  defendant 
in  a  separate  action,  as  the  costs  cannot  be  taxed  by  court  below  on 
return  of  record;  but  plaintiff  cannot  recover  costs  for  remittitur 
after  reversal  on  appeal  by  defendant :  Leonard  v.  Smith,  4  Dist.  249, 
1895;  (e)  appeal  from  refusal  to  grant  issue  d.  v.  n.  may  be  dismissed 
without  costs:  Rogers 's  Est.,  154  Pa.  217,  1893;  (f)  where  execution 
is  reversed  on  ground  that  no  judgment  had  been  entered  on  award, 
and  judgment  is  subsequently  entered,  plaintiff  is  not  entitled  to  costs 
on  appeal:  Atkinson  v.  Crossland,  4  Watts  450,  1835;  (g)  when  decree 
is  reversed  only  in  part  and  "costs  of  appeal"  are  placed  on  appel- 

395 


COSTS. 

§239  (1)  (g)-(2)  (m)  Who  Must  Pay.  [Chap.  17, 

lees,  no  other  costs  are  included:  Reigel's  Ap.,  1  "Walk.  72,  1880;  Tay- 
lor's Ap.,  21  W.  N.  C.  356,  1888. 

(2)  Who  Must  Pay  Costs,  (a)  Prothonotary  of  appellate  court 
must  look  to  appellant  for  his  fees:  Moore  v.  Porter,  13  S.  &  R.  100, 
1825;  (b)  where  judgment  is  reversed  without  terms  and  venire  de 
novo  is  awarded,  costs  must  be  paid  by  final  loser :  Work  v.  Maclay,  14 
S.  &  R.  265, 1826;  Kraut  v.  Fox,  1  W.  N.  C.  401, 1875;  Herr  v.  Keemer, 
1  Lane.  L.  Rev.  337,  1884;  Leonard  v.  Smith,  4  Dist.  249,  1895;  (c) 
where  auditor  was  improperly  appointed  to  apportion  collateral  in- 
heritance tax,  costs  of  appeal  should  be  placed  on  register:  Burk- 
hart's  Est.,  25  Pa.  Super.  514,  1904;  (d)  where  judgment  in  favor 
of  appellee  is  reversed  and  he  pays  costs  of  appeal  but  again  obtains 
judgment  in  new  trial,  he  may  recover  in  assumpsit  costs  of  appeal 
paid:  Hamilton  v.  Aslin,  3  Watts  222,  1834;  (e)  but  not  where  such 
payment  was  not  compulsory:  Richardson  v.  Cassilly,  5  Watts  449, 
1836;  (f)  where  costs  are  paid  by  plaintiff  who  then  appeals,  but  too 
late  to  effect  a  supersedeas,  and  judgment  is  reversed  with  venire  but 
without  order  of  restitution,  and  verdict  on  second  trial  is  for  plain- 
tiff, costs  already  paid  cannot  be  taxed,  nor  can  restitution  be  ordered : 
Proper  v.  Campbell,  12  Dist.  203,  1903;  (g)  where  one  of  several 
plaintiffs  withdraws  before  decree  entered  in  favor  of  plaintiffs,  and 
he  then  appeals  and  decree  is  reversed,  costs  may  be  imposed  on  him : 
Markle  v.  Wilbur,  200  Pa.  473, 1901;  (h)  in  ejectment  where  jury  find 
for  plaintiff  for  part  of  land  only,  he  is  entitled  to  costs :  Bachman  v. 
Gross,  150  Pa.  516,  1892;  (i)  appeal  from  refusal  to  grant  issue  d.  v. 
n.  may  be  dismissed  without  costs:  Rogers 's  Est.,  154  Pa.  217,  1893; 
(j)  costs  of  unsuccessful  appeal  by  executors  in  resisting  widow's 
claim  may  be  put  on  executors  individually:  Walter's  Est.,  2  Chester 
Co.  159,  1874;  (k)  one  appointed  receiver  by  court  having  no  power 
to  make  such  appointment,  may  have  his  right  to  assets  tested  by 
appeal  from  decision  denying  such  right  without  being  personally 
liable  for  costs:  Fraternal  Guardian's  Est.,  159  Pa.  603,  1894;  (1) 
where  appeal  by  trustee  from  disallowance  of  certain  payments  out 
of  trust  estate  is  sustained,  costs  are  payable  out  of  trust  estate: 
Hoffman's  Est.,  12  Dist.  770,  1903;  (m)  where  fund  for  benefit  of 
creditors  has  been  created  by  appeal  of  some  of  creditors  from  dis- 
tribution of  estate,  appellants  are  entitled  to  their  costs  out  of  estate 
and  also  reasonable  counsel  fees:  Schwartz  v.  Oil  Co.,  164  Pa.  415, 
1894;  (n)  one  who  wrongfully  causes  satisfaction  of  judgment  to  be 

396 


COSTS. 

§§237-44]  Who  Must  Pay  §  239  (2)  (n)-(w) 

stricken  from  record  is  liable  for  costs  of  successful  appeal  by  other 
party,  including  expenditures  for  counsel  and  for  printing:  Stevenson 
v.  Whitesell,  10  Pa.  Super.  306,  1899;  (o)  where  plaintiff  appeals, 
without  success,  from  judgment  in  his  own  favor,  he  is  not  entitled  to 
costs  of  appeal:  Cameron  v.  Paul,  11  Pa.  277,  1849;  (p)  where  amend- 
ment is  allowed  in  appellate  court,  party  amending  may  be  required 
to  pay  costs  accrued,  including  those  of  appeal:  Brothers  v.  Mitchell, 
157  Pa.  484,  1893;  Hughes  v.  Williams,  17  Pa.  Super.  229,  1901;  (q) 
where,  after  appeal  from  interlocutory  decree  and  before  removal  of 
record,  court  below  modifies  such  decree  so  as  to  correct  its  error, 
and  enters  final  decree,  from  which  second  appeal  is  taken,  appellate 
court,  in  affirming  decree,  may  impose  costs  of  first  appeal  upon  ap- 
pellee: Green  v.  Paint  Co.,  25  Pa.  Super.  415,  1904;  (r)  in  case  of 
erroneous  entry  of  judgment  below,  court  will  modify  judgment  so 
that  costs  will  be  made  payable  out  of  specified  fund:  Rodgers  v. 
Black,  15  Pa.  Super.  498,  1901;  (s)  on  re-argument  where  decree  is 
reaffirmed,  petitioner  may  be  ordered  to  pay  costs  of  re-argument,  in- 
cluding printing  of  other  party's  paper-books:  Heilman  v.  R.  R.,  180 
Pa.  627,  1897;  (t)  where  defendant  on  appeal  secured  reduction  of 
decree  against  him,  it  was  ordered  that  each  party  pay  one-half  the 
costs:  Danville,  &c.  R.  R.  v.  Kase,  41  W.  N.  C.  411,  1898;  (u)  and 
where  court,  instead  of  reversing  judgment  and  ordering  new  trial, 
reduces  judgment  of  lower  court  in  favor  of  plaintiff  to  nominal 
amount,  it  may  order  plaintiff  to  pay  costs:  Ludwig  Piano  Co.  v. 
Brown,  33  Pa.  Super.  81,  1907;  (v)  the  Act  of  May  19,  1879,  P.  L.  66, 
1  Purd.  375,  pi.  16,  provided  that  in  proceedings  against  attorneys  for 
questionable  conduct,  if  the  appellate  court  shall  modify  or  reverse 
the  decree  of  the  lower  court,  all  costs,  charges,  and  expenses  should 
be  paid  by  the  proper  county  in  which  the  proceedings  arose,  and  if 
the  proceedings  of  the  lower  court  were  confirmed,  same  should  be 
paid  by  the  complainant ;  (w)  where  judgment  for  plaintiff  is  reversed 
on  appeal  by  defendant  but  appellate  court  awards  new  venire,  and  on 
second  appeal  by  defendant  judgment  for  plaintiff  is  affirmed,  defen- 
dant cannot  recover  from  plaintiff  costs  of  first  appeal:  Penna.  Co.  v. 
Wallace,  36  Pa.  C.  C.  602, 1909 ;  as  to  liability  for  costs  in  appeals  from 
proceedings  against  attorneys  for  unprofessional  conduct,  see  §53, 
above. 

(3)     Special  Order  as  to  Costs — Equitable  Cases,    (a)  Where  there 
are  strong  equities  in  favor  of  appellant,  court  may  divide  costs  be- 

397 


COSTS. 
§239  (3) -§240  Special .  Order — Paper-books  [Chap.  17, 

tween  parties:  Kelso's  Ap.,  102  Pa.  7,  1882;  Connellsville  v.  Hogg, 
156  Pa.  326,  1893;  Brothers  v.  Mitchell,  157  Pa.  484,  1893;  Danville 
etc.,  R.  R.  v.  Kase,  41  W.  N.  C.  411, 1898;  (b)  where  it  appears  appel- 
lee has  disregarded  rights  of  appellant,  costs  may  be  imposed  on  appel- 
lee even  though  judgment  be  affirmed:  Heilman  v.  R.  R.,  180  Pa.  627, 
1897;  (c)  where  appeal  in  equity  is  dismissed  with  costs,  master's 
fee  is  included  therein:  Huston  v.  Clark,  173  Pa.  361,  1896;  (d)  order 
of  appellate  court  imposing  costs  upon  either  party  to  appeal  cannot 
be  modified  or  altered  in  any  particular  by  court  below:  Janes 's  Ap., 
87  Pa.  428,  1879;  (e)  where  appellee  is  guilty  of  laches  in  pursuing 
his  remedy,  costs  on  affirmance  of  judgment  will  be  placed  on  said  ap- 
pellee and  not  on  appellant:  Palm's  Est.,  13  Pa.  Super.  296,  1900;  (f) 
the  Act  of  June  7, 1907,  P.  L.  440,  §3,  5  Purd.  5466,  pi.  5,  provides  that 
where  in  an  equity  case  the  appellate  court  decides  that  the  suit  should 
have  been  brought  at  law,  the  cause  shall  be  remitted  with  directions 
to  transfer  it  to  the  law  side  of  the  court,  the  costs  to  abide  the  final 
determination  of  the  suit  in  that  court:  see  §228  (C),  above. 

(4)  What  is  Included  in  Costs  on  Appeal,  (See  §134).  (a)  An 
order  on  reversal  by  appellate  court  that  "costs  of  this  appeal"  be 
paid  by  appellees,  includes  costs  of  appeal  only :  Reigel  's  Ap.,  1  Walk. 
72,  1881;  Taylor's  Ap.,  21  W.  N.  C.  356,  1888;  (b)  reversal  of  judg- 
ment in  issue  d.  v.  n.  carries  costs  of  common  pleas  and  in  error  but 
not  those  before  register:  McMasters  v.  Blair,  31  Pa.  467,  1858;  (c) 
where  appeal  from  equity  decree  is  dismissed  with  costs,  master's  fee  is 
included  in  such  costs:  Huston  v.  Clark,  173  Pa.  361,  1896;  (d)  costs 
of  remittitur,  when  paid  by  defendant  in  error,  cannot  be  taxed 
by  court  below  on  return  of  record,  but  may  be  recovered  by  separate 
action:  Leonard  v.  Smith,  4  Dist.  249,  1895;  see  also  §§240  to  242. 

§240.  —  Paper-Books — Printing.  In  all  cases,  either 
in  law  or  equity,  wherein  an  appeal  is  taken  from  any  judg- 
ment, decree,  or  order,  to  the  Supreme  or  the  Superior 
Court,  the  party  in  whose  favor  the  final  decision  is  ren- 
dered shall  be  entitled  to  charge  and  collect  from  the  losing 
party  as  part  of  the  costs,  such  amount  as  shall  have  been 
expended  for  printing  paper-books  upon  said  appeal.  The 
cost  of  printing  the  paper-book  of  each  party  shall  be  taxed 
as  costs,  collectible  by  the  attorney  of  record  of  such  party 

398 


COSTS. 
§§237-44]  Paper-books—  Special  Writs  §§240,241 

in  such  appeal.  Said  amount  to  be  taxed  and  collected  in 
the  same  manner  as  costs  are  now  taxed  and  collected  by 
law.  Act  April  27,  1909,  §i,  P.  L.  264,  5  Purd.  5468,  pi.  4, 
>  pi.  3. 


(1)  Scope  of  Act.  (a)  Act  April  13,  1907,  P.  L.  83,  which  was 
superseded  by  the  above  act,  was  held  not  to  apply  to  appeals  deter- 
mined before  its  passage:  Barto  v.  Traction  Co.,  37  Pa.  Super.  447, 
1908;  Miller  v.  Jackson,  38  Pa.  Super.  477,  1909;  Duff  v.  Thrall,  39  Pa. 
Super.  254,  1909;  (b)  the  act  does  not  apply  to  cases  of  assignment  of 
counsel  to  defend  destitute  persons  on  trial  for  murder  under  Act  of 
March  22,  1907,  P.  L.  31,  5  Purd.  5380,  pl.  3  :  Com.  v.  Smith,  18  Dist. 
1003,  1909  ;(  c)  defendant  who  appeals  from  judgment  in  trespass  for 
cutting  timber,  which  judgment,  on  rule  to  show  cause  subsequently 
entered,  was  trebled  by  lower  court,  and  on  appeal  secures  reversal  of 
judgment  imposing  treble  damages  and  order  that  judgment  be  en- 
tered for  amount  of  verdict  only,  is  not  a  successful  party  entitled  to 
costs  of  printing  of  paper-book  within  the  meaning  of  this  act:  Hen- 
ning  v.  Keiper,  43  Pa.  Super.  177,  1909;  (d)  where  on  appeal  by  de- 
fendant judgment  on  verdict  is  reversed  and  new  venire  granted  un- 
less within  twenty  days  plaintiff  shall  file  stipulation  remitting  one- 
fourth  of  judgment,  and  plaintiff  files  stipulation,  he  is  entitled  to 
costs  of  printing  paper-book:  Boon  &  Hill  Co.  v.  Trust  Co.,  56  Pitts. 
L.  J.  428,  1909  ;  (e)  where  judgment  for  plaintiff  is  reversed  on  appeal 
by  defendant  but  appellate  court  awards  new  venire,  and  on  second 
appeal  by  defendant  judgment  for  plaintiff  is  affirmed,  defendant  can 
not  recover  from  plaintiff  costs  of  printing  paper-book  on  first  appeal  : 
Penna.  Co.  v.  Wallace,  44  Pa.  Super.  64,  1909  ;  (f  )  where  bill  in  equity 
was  dismissed  and  costs  imposed  on  parties  equally,  and  on  appeal 
judgment  was  affirmed,  appellant  must  pay  entire  cost  of  appeal,  in- 
cluding paper-books  of  both  parties,  as  order  of  lower  court  referred 
only  to  costs  accrued  up  to  that  time:  Eisler  v.  Marshall,  59  P.  L.  J. 
397,  1911. 

(2)  Cost  of  Paper-Book  in  Murder  Case.    See  §239  (B),  above. 

(3)  Cost  of  Transcript  of  Evidence.    See  §§156  to  160,  inclusive, 
above. 

§241.     —  Special  Writs  and  Petitions.    For  all  services 
in  connection  with  said  writs  [to  perfect  records  or  bring 

399 


COSTS — PENALTIES. 


§§241,242  Special   Writs— Appeal   for    Delay  [Chap.  17, 

them  up  a  second  time],  or  with  any  other  special  writs, 
issued  in  appealed  cases,  the  prothonotary  of  the  appel- 
late court  shall  be  paid,  at  the  time  the  writ  is  issued,  the 
sum  of  three  dollars,  which  shall,  in  the  discretion  of  the 
appellate  court,  be  ultimately  paid  by  the  party  suing  out 
the  writ  or  as  costs  in  the  cause.  A  like  sum  shall  be  paid 
the  prothonotary  of  the  Supreme  Court  on  filing  a  petition 
for  the  allowance  of  an  appeal  from  the  Superior  Court, 
but  it  shall,  however,  form  part  of  the  prothonotary's  costs 
on  the  appeal  if  the  petition  is  granted.  Act  May  19,  1897, 
§18,  P.  L.  67,  2.  Purd.  1450,  pi.  65. 

§242.  Penalties — Appeals  for  Delay — Additional  At- 
torney Fee — Interest.  In  all  cases  where  the  appellate 
court  shall  be  of  opinion  that  the  appeal  was  sued  out 
merely  for  delay,  it  shall  award  as  further  costs  an  addi- 
tional attorney  fee  of  twenty-five  dollars,  and  damages  at 
the  rate  of  six  per  centum  per  annum  in  addition  to  legal 
interest.  Act  May  19,  1897,  §21,  P.  L.  67,  2  Purd.  1451, 
pi.  69. 

(1)  Penalty — When  Imposed.  Many  of  the  following  decisions 
were  rendered  under  Act  May  25,  1874,  P.  L.  227,  superseded  by  the 
Act  of  1897,  but  the  principles  laid  down  are  equally  applicable  to  the 
latter  act.  Penalty  will  be  imposed:  (a)  Where  no  answer  is  filed  to 
petition  for  rule  to  show  cause  why  damages  should  not  be  awarded: 
Blodgett  v.  Hagen,  1  W.  N.  C.  180,  1875;  (b)  where  appellant 
offered  to  settle  claim  before  beginning  of  action  and  appealed  from 
judgment  for  want  of  sufficient  affidavit  of  defense  which  was  af- 
firmed: Binswanger  v.  Fisher,  3  W.  N.  C.  340,  1876;  (c)  where  judg- 
ment in  ejectment  entered  under  warrant  of  attorney  in  lease  was 
affirmed  by  appellate  court:  Anker-miller  v.  O'Bryne,  2  Mona.  766, 
1887;  (d)  on  appeal  by  defendant  where  judgment  in  ejectment  was 
for  plaintiff  for  part  of  land  and  for  defendant  for  balance,  and  defen- 
dant not  having  filed  disclaimer,  plaintiff  was  awarded  full  costs: 
Bachman  v.  Gross,  150  Pa.  516,  1892;  (e)  where  appellant  vacated 
premises  in  suit:  Depuy  v.  Okie,  2  Mona.  769,  1889;  (f)  where  suit 

400 


APPEAL  FOR  DELAY. 


§§237-44]  Penalties  §242  (1)    (f)-(2)    (a) 

of  infant  is  settled  by  her  father  pending  an  appeal  without  sanction 
of  court  and  appeal  abandoned:  O'Donnell  v.  Broad,  149  Pa.  24,  1892; 
(g)  where  no  preparation  was  made  of  paper-books  or  to  argue  appeal, 
and  facts  showed  a  threat  made  to  appeal  if  settlement  was  refused : 
Pennypacker  v.  Dear,  166  Pa.  284,  1895;  Brannan  v.  Bond,  18  Pa. 
Super.  535,  1901  j  compare  Wolf  v.  Traction  Co.,  18  Pa.  399,  1897; 
(h)  where  appeal  was  non-prossed  and  no  paper-book  served:  Martin 
v.  Rider,  181  Pa.  265, 1897;  Wilcox  v.  Merrill,  26  Pa.  Super.  59,  1904; 
TwibilFs  Est.,  29  Pa.  Super.  319, 1905;  (i)  where  no  paper-books  were 
printed  and  petition  filed  eight  months  after  taking  appeal  to  remit 
case  to  the  Superior  Court:  McFadden  v.  McFadden,  211  Pa.  599, 
1905;  (j)  where  no  paper-books  were  served  and  petition  set  forth 
that  assignments  of  error  were  frivolous:  Dietrich  v.  Loughran,  29 
Pa.  Super.  320,  1905 ;  (k)  where  no  preparation  made  and  appeal  from 
judgment  for  want  of  suffiicent  affidavit  of  defense  withdrawn  and 
case  discontinued  on  first  day  of  term:  Bromley  v.  Lippincott,  184 
Pa.  462, 1898 ;  (  1)  where  on  appeal  in  replevin  case  no  assignments  of 
error  were  filed  and  appeal  was  withdrawn  on  first  day  of  term,  and 
answer  to  petition  denied  appeal  for  delay  and  set  forth  that  appeal 
was  taken  under  the  opinion  that  the  court  should  have  entered  non- 
suit and  that  unprofessional  advantage  had  been  taken  of  appellant: 
Serf  ass  v.  Stevenson,  8  Pa.  Super.  519,  1898;  (m)  in  interpleader  pro- 
ceedings to  determine  title  to  stock  and  fixtures  sold  in  fraud  of 
creditors,  where  appellant  knew  of  appellee 's  judgment  against  debtor, 
filed  no  assignments  of  error,  served  no  paper-book,  suffered  non-pros 
and  made  no  answer  to  petition  for  rule  for  penalty:  Ebert  v.  Kauf- 
man, 34  Pa.  Super.  487,  1907;  (n)  where  respondent  in  divorce  appeal- 
ed from  interlocutory  order  overruling  demurrer  to  libel:  Richardson 
v.  Richardson,  193  Pa.  279, 1899;  (o)  where  appeal  is  taken  from  judg- 
ment entered  for  amount  admitted  to  be  due  in  affidavit  of  defense  in 
sci.  fa.  sur  mortgage  with  leave  to  plaintiff  to  proceed  to  trial  for  ad- 
ditional interest  claimed:  Smead  v.  Stuart,  194  Pa.  578,  1900;  (p) 
where  administrator  appealed  from  refusal  of  court  to  refer  report 
back  to  auditor  on  petition  filed  after  two  years'  delay:  Radigan's 
Est.,  13  Pa.  Super.  131,  1900. 

(2)  When  not  Imposed.  Penalty  will  not  be  imposed  in  the  fol- 
lowing cases:  (a)  Where  there  is  an  affirmance  of  the  judgment  with 
a  dissenting  opinion:  Camden,  &c.  Steamboat  Co.  v.  Monaghan,  10 
W.  N.  C.  48,  1881;  (b)  where  affidavit  was  filed  by  administrator  that 

401 
26 


APPEAL  FOR  DELAY. 


§242  (2)  (<b)-§243  Penalties— Restitution  [Chap.  17, 

appeals  were  not  taken  for  delay  but  under  the  advice  of  counsel: 
Bucknor's  Ap.,  2  Mona.  774,  1886;  (c)  where  appeal  was  perfected 
and  prosecuted  without  delay  and  so  set  forth  in  the  answer  to  the 
petition:  Drumond's  Ap.,  2  Mona.  775, 1888;  (d)  where  an  appeal  was 
taken  in  good  faith  from  an  excessive  verdict  and  subsequently  aban- 
doned because  such  error  at  that  time  had  never  been  considered  by 
the  Supreme  Court:  Wolf  v.  Traction  Co.,  181  Pa.  399,  1897;  (e) 
where  the  evidence  on  the  trial  was  of  such  a  nature  as  to  show  that 
appeal  was  taken  in  good  faith :  Jacoby  v.  Ins.  Co.,  10  Pa.  Super.  185, 
1899;  Pure  Oil  Co.  v.  Terry,  16  Pa.  Super.  337,  1901;  Thirteenth 
Ward  B.  &  L.  Ass'n.  v.  Coyle,  19  Pa.  Super.  238,  1902;  (f)  where  ap- 
peal was  taken  by  administrator  in  good  faith:  Bucknor's  Ap.,  2 
Mona.  774,  1886;  Hiyer  v.  Hayward,  14  Pa.  Super.  56,  1900;  (g) 
where  appeal  was  from  decree  ordering  account,  which  account  was 
regularly  filed  before  appeal  was  reached  for  argument:  Lodge's  Ap., 
2  Mona.  764,  1888. 

(3)     Time  of  Imposition  of  Penalty  and  Necessity  for  Special  Rule. 

(a)  Question  whether  an  appeal  was  taken  for  delay  cannot  be  con- 
sidered on  motion  to  quash,  but  will  be  passed  on  when  case  is  called 
in  its  regular  order:  Moodie  v.  Ashland  Bank,  1  W.  N.  C.  324,  1875; 

(b)  application  under  Act  1897  should  be  made  before  expiration  of 
ten  days  from  the  decision  of  the  appellate  court;  after  the  record 
has  been  returned  and  the  debt,  interest  and  costs  paid,  application  is 
too  late:  Thirteenth  Ward  B.  &  L.  Ass'n.  v.  Coyle,  19  Pa.  Super.  238, 
1902;  (c)  a  penalty  imposed  on  an  appeal  discontinued  before  return- 
day  is  not  an  affirmance  of  the  judgment,  irregularly  entered,  pending 
order  on  plaintiff  to  remit  portion  of  verdict,  otherwise  new  trial: 
Keating  v.  Ry  Co.,  5  W.  N.  C.  232,  1878;  (d)  on  appeal  from  judg- 
ment of  trivial  amount  when  lower  court  was  clearly  right,  penalty 
will  be  imposed  at  time  of  affirmance  of  judgment  without  special 
rule :  Bachman  v.  Gross,  150  Pa.  516,  1892. 

§243.  Restitution.  If  any  of  the  said  judgments,  which 
do  or  shall  warrant  the  awarding  of  the  said  writs  of  exe- 
cution, whereupon  any  lands,  tenements  or  hereditaments 
have  been,  or  shall  be  sold,  shall  at  any  time  hereinafter 
be  reversed  for  any  error  or  errors,  then  and  in  any  such 
case,  none  of  the  said  lands,  tenements  or  hereditaments, 
so  as  aforesaid  taken  or  sold,  or  to  be  taken  or  sold,  upon 

402 


RESTITUTION. 


§§237-44]  When  Granted  §  243  (1)  (a)-(f ) 

executions,  nor  any  part  thereof,  shall  be  restored,  nor 
the  sheriff's  sale  or  delivery  thereof  avoided:  but  restitu- 
tion in  such  cases  only  of  the  money  or  price  for  which 
such  lands  were  or  shall  be  sold.  Act  1705,  §9,  I  Sm.  L.  61, 
2.  Purd.  1572,  pi.  125. 

If  the  money  is  collected  upon  execution  issued  within 
three  weeks  from  the  entry  of  the  judgment,  order  or  de- 
cree, or  upon  execution  issued  upon  a  judgment  or  decree 
which  is  afterwards  reversed,  the  Superior  Court  may 
make  an  order  of  restitution.  Act  June  24,  1895,  §8,  P.  L. 
212,  4  Purd.  4504,  pi.  37. 

(1)  When  Restitution  Will  be  Granted,  (a)  On  the  reversal  of  a 
judgment,  after  execution,  the  court  will  usually  grant  restitution, 
unless  there  are  peculiar  circumstances  tending  to  make  such  relief 
inequitable:  Ranck  v.  Becker,  13  S.  &  R.  41,  42,  1825;  Coughanour  v. 
Bloodgood,  27  Pa.  285,  1856;  Hoffman  v.  Hafner,  211  Pa.  10,  1905; 
(b)  restitution  will  be  awarded  in  the  following  cases:  where  judg- 
ment on  verdict  has  been  collected  by  execution  or  other  means  and 
is  subsequently  reversed:  Cassel  v.  Duncan,  2  S.  &  R.  57, 1815;  Russel 
v.  Gray,  6  S.  &  R.  208,  1820;  Ranck  v.  Becker,  13  S.  &.  R.  41,  1825; 
Duncan  v.  Kirkpatrick,  13  S.  &  R.  292,  1825;  Boal's  Ap.,  2  Rawle  37, 
1829;  Breading  v.  Blocher,  29  Pa.  347,  1857;  Bare  v.  Hoffman,  79  Pa. 
71,  1875;  Krepps  v.  Mitchell,  156  Pa.  320,  1893;  Benscotter  v.  Long, 
167  Pa.  595,  1895;  Hoffman  v.  Hafner,  211  Pa.  10,  1905;  (c)  where 
order  striking  off  satisfaction  of  judgment  is  reversed:  Whitesell  v. 
Peck,  176  Pa.  170,  1896;  (d)  where  defendant  has  paid  judgment, 
after  execution  issued  against  him:  Benscotter  v.  Long,  167  Pa.  595, 
1895;  Brightly  v.  McAleer,  4  Pa.  Super.  563,  1897;  (e)  where  judg- 
ment for  want  of  sufficient  affidavit  of  defense  is  reversed  on  appeal, 
appellate  court  will,  after  record  is  returned  to  lower  court,  order 
restitution  of  money  paid  to  sheriff  under  execution  levied  prior  to 
appeal,  though  record  did  not  show  payment  of  money  but  simply 
stay  of  execution:  Brightly  v.  McAleer,  4  Pa.  Super.  563,  1897;  (f) 
judgment  of  restitution  given  upon  reversal  of  erroneous  judgment, 
is  conclusive  of  matters  adjudicated  and  establishes  beyond  further 
question  right  of  appellant  to  be  restored  to  all  things  lost  by  reason 
of  such  erroneous  judgment.  Its  justice  cannot  be  prejudiced  in  any 

403 


RESTITUTION. 


§  243  (1)    (f)-(3)    (c)  When  not  Granted  [Chap.  17, 

collateral  proceeding,  nor  can  its  execution  be  delayed  to  abide  final 
result  of  suit:  Breading  v.  Blocher,  29  Pa.  347,  1857;  (g)  where  ap- 
pellate court  reverses  execution,  which  has  been  executed,  restitution 
will  be  awarded  as  matter  of  course,  and  if  record  has  not  gone  down, 
award  may  be  made  at  term  subsequent  to  judgment  of  reversal :  Cas- 
sel  v.  Duncan,  2  S.  &  R.  57, 1815;  (h)  where  judgment  of  lower  court, 
reversing  proceedings  of  two  justices  and  awarding  restitution  of  land 
in  controversy,  is  reversed,  appellate  court  will  award  restitution: 
Cooke  v.  Reinhart,  1  Rawle  317,  1829;  (i)  refusal  of  restitution  on 
reversing  judgment  for  plaintiff  and  awarding  new  trial  does  not 
bar  right  on  recovery  of  judgment  by  defendant  on  second  trial: 
Traveler's  Ins.  Co.  v.  Heath,  95  Pa.  333,  1880. 

(2)  When  Restitution  Will  not  be  Granted,    (a)  Restitution  is  not 
of  mere  right.    It  is  ex  gratia,  resting  in  exercise  of  sound  discretion, 
and   court   will   not    order   it   where  justice   does   not   call   for   it, 
or  where  process  is  set  aside  for  mere  slip  and  there  is  danger  that 
plaintiff  may  lose  his  demand:  Harger  v.  Commissioners,  12  Pa.  251, 
1849;  Grant  v.  Rodgers,  6  Phila.  132,  1866;  Travellers'  Ins.  Co.  v. 
Heath,  95  Pa.  333,  1880;  Gould  v.  McFall,  118  Pa.  455,  1888;  New 
Castle  v.  Genkinger,  37  Pa.  Super.  21,  1908;  (b)  nor  in  violation  of 
express  agreement :  Fitzalden  v.  Lee,  2  Dall.  205, 1793 ;  Cahill  v.  Benn, 
6  Binn.  99,  1813;  (c)  nor  where  defendant  voluntarily  pays  debt  be- 
fore sale,  and  judgment  is  subsequently  reversed:  Gould  v.  McFall, 
118  Pa.  455, 1888;  (d)  where  judgment  on  scire  facias  is  reversed  after 
sale  by  sheriff  for  technical  defects  in  record,  restitution  will  not  be 
ordered,  but  fund  will  be  required  to  be  brought  into  court  to  await 
future  order:  Kirk  v.  Eaton,  10  S.  &  R.  103,  1823;   (e)  also  where 
land  sold  was  bound  by  subsequent  liens :  Ranck  v.  Becker,  13  S.  &  R. 
41,  1825;  (f)  where  judgment  of  possession  in  landlord  and  tenant 
proceedings  is  reversed,  restitution  is  not  of  right :  Fitzalden  v.  Lee,  2 
Dall.  205,  1793;  Alden  v.  Lee,  1  Yeates  160,  207,  1792. 

(3)  Order  by  Lower  Court,    (a)  When  judgment  is  collected  after 
appeal  to  Supreme  Court  on  order  striking  off  satisfaction,  which 
order  is  reversed,  restitution  may  be  awarded  by  court  below:  White- 
sell  v.  Peck,  176  Pa.  170,  1896;  (b)  so  also  when  money  has  been  col- 
lected on  execution,  and  judgment  is  opened  and  approved  on  appeal : 
Sommer  v.  Sommer,  10  Lane.  Bar  81,  1878;  (c)  and  orphans'  court 
may   order   restitution    where   appellate   court   has   reversed   decree 
under  which  distribution  was  made :  Stough  's  Est.,  10  Dist.  547,  1901 ; 

404 


RESTITUTION. 


§§  237-44]  Enforcement  of  Order  §  243  (3)  (d)- (5) 

(d)  but  court  below  cannot  graft  on  decree  of  appellate  court  order 
of  restitution  not  contained  in  such  decree ;  its  duty  is  confined  to  en- 
forcing decree  without  any  enlargement  or  change  in  its  legal  effect: 
Hughes 's  Ap.,  90  Pa.  60,  1879;  (e)  appellate  court  will  review  exer- 
cise of  discretion  of  court  below  in  refusing  restitution:  Buchanan  v. 
Banks,  203  Pa.  599,  1902;  Hoffman  v.  Hafner,  211  Pa.  10,  1905;  (f) 
but  no  appeal  lies  from  order  of  restitution  by  lower  court  after  re- 
versal by  Supreme  Court:  Harris  v.  Harris,  35  L.  I.  324,  1878;  (g) 
when  judgment  of  summary  conviction  is  reversed,  restitution  is  dis- 
cretionary, and  will  not  be  awarded  if  conduct  of  defendant  has  been 
improper:  Newcastle  v.  Genkinger,  37  Pa.  Super.  21,  1908. 

(4)  Enforcement  of  Order — Lien,     (a)   Appellate  court  will  not 
enforce  order  of  restitution  by  attachment,  but  will  remit  record  to 
court  below  to  carry  its  order  into  effect:  Russell  v.  Gray,  6  S.  &  R. 
208, 1820 ;  (b)  it  is  duty  of  lower  court  to  promptly  enforce  restitution 
ordered  by  appellate  court,  and  it  cannot  consider  allowance  of  set- 
off:  Hart  v.  Weidzelski,  9  Kulp  313,  1898;  (c)  order  of  restitution 
will  not  be  suspended  for  purpose  of  directing  issue  to  try  merits: 
Ranck  v.  Becker,  13  S.  &  R.  41,  1825;  (d)  order  of  restitution  is  not 
collateral  to  judgment,  but  part  of  judgment  itself:  Duncan  v.  Kirk- 
patrick,  13  S.  &  R.  292,  1825;  (e)  and  becomes  a  lien  upon  chattels 
from  time  of  receipt  by  sheriff:  Boal's  Ap.,  2  Rawle  37,  1829;  (f)  and 
on  lands  from  time  of  levy:  Boal's  Ap.,  2  Rawle  37,  1829;  (g)  resti- 
tution can  be  awarded  only  of  amount  actually  received  by  plaintiff, 
and  where  defendants'  land  has  been  sold  by  sheriff  for  a  small  sum, 
subject  to  plaintiff's  lien,  and  afterwards  conveyed  to  him  by  vendee, 
defendant  can  recover  back  no  more  than  actual  cash  paid  at  sale: 
Cassell  v.  Cooke,  8  S.  &  R.  296,  1822. 

(5)  Assumpsit  when  Restitution  is  not  Granted.        (a)   Where 
restitution  has  not  been  awarded,  defendant  may  maintain  action  of 
assumpsit  to  recover  back  money  paid  under  execution  on  reversed 
judgment:  Duncan  v.  Kirkpatrick,  13  S.  &  R.  292,  1825;  Breading  v. 
Blocher,  29  Pa.  347,  1857;  Sommer  v.  Sommer,  10  Lane.  Bar  81,  1878; 
Travellers'  Ins.  Co.  v.  Heath,  95  Pa.  333, 1889;  (b)  but  assumpsit  does 
not  lie  on  order  of  restitution :  Duncan  v.  Kirkpatrick,  13  S.  &  R.  292, 
1825. 


405 


REMITTITUR. 

§  244  Copy  of  Opinion  Remitted        [Chap.  17,  §§  237-44] 

§244.  Remittitur — Copy  of  Opinion  to  be  Sent  to 
Lower  Court.  At  the  expiration  of  ten  days  from 
the  final  decision  of  any  cause  by  the  Supreme  Court,  or 
Superior  Court,  the  prothonotary  thereof  shall  send  back 
the  record,  with  a  remittitur  and  a  copy  of  the  opinion,  to 
the  court  from  which  it  originally  came,  unless  other  steps 
be  taken  in  the  cause  which  shall  require  its  detention.  It 
shall  not  be  necessary  to  return  the  record  to  the  Superior 
Court  in  any  case  appealed  therefrom,  unless  the  Supreme 
Court  shall  so  direct,  but  it  shall  be  remitted  to  the  court 
from  which  it  originally  came,  in  the  same  manner,  and 
with  like  effect  as  if  directly  appealed  to  the  Supreme  Court 
therefrom.  Act  of  May  19,  1897,  §20,  P.  L.  67,  2  Purd.  1450, 
pi.  66. 

In  all  cases  where,  in  pursuance  of  the  judgment  of  this 
court  a  cause  goes  back  to  the  court  below  for  further  pro- 
ceedings, it  shall  be  the  duty  of  the  prothonotary  to  certify 
and  send  back  with  the  order,  decree  or  judgment,  a  copy 
of  the  opinion  of  the  court  which  shall  have  been  filed. 
Supreme  Court  Rule  17;  Superior  Court  Rule  n. 

(1)  Removal  of  Record,     (a)  A  case  is  pending  so  long  as  record 
remains  in  appellate  court:  Star  v.  Bradford,  2  P.  &  W.  384,  1831; 
(b)  and  until  remittitur  is  filed,  court  below  does  not  re-acquire  jur- 
isdiction: Cox  v.  Henry,  36  Pa.  445,  1860;  (c)  nor  does  it  become  a 
judgment  of  lower  court  until  that  time:  McMasters  v.  Blair,  31  Pa. 
467,  1858;  Penna.  R.  R.  v.  Com.,  39  Pa.  403,  1861;  (d)  but  order  to 
remit  record  has  effect  of  constructive  removal  whether  or  not  actual 
removal  was  made :  Allbright  v.  McGinnis,  4  Yeates  517,  1808 ;  McCall 
v.  Crousillat,  3  S.  &  R.  7,  1817;   (e)  and  execution  may  issue  from 
court  below  at  once:  Penna.  R.  R.  v.  Com.,  39  Pa.  403,  1861;  Faucett 
v.  Harris,  190  Pa.  98,  1899;  (f)  where  judgment  in  ejectment  was  re- 
versed, delay  of  twenty-five  years  by  plaintiff  in  taking  remittitur  has 
been  held  to  justify  entry  of  non-pros:  Neel  v.  McElhenny,  189  Pa. 
489,  1899.    For  cases  relating  to  remitting  of  record  for  further  pro- 
ceedings, see  §228,  note  (6) ;  see  also  §123. 

(2)  Form.    For  form  of  remittitur,  see  Appendix,  §§70  and  71. 

406 


APPENDIX. 

Forms.  §  1,  Ap. 

APPENDIX. 


§i,  FORM  A.— APPLICATION  FOR  PRELIMINARY 
EXAMINATION  OF  STUDENT  AT  LAW. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  oi  \    For  Examination  and 

I       Registration     as     a 
j        Student  at  Law. 

COMMONWEALTH  OF  PENNSYLVANIA,     ) 

I     £g 

COUNTY  OF j 

being  duly  sworn  [or  affirmed]  accord- 
ing to  law,  deposes  and  says : 

1.  That  he  is  the  applicant  above  named  and  the  per- 
son mentioned  in  the  annexed  exhibit  filed  with  this  ap- 
plication; that  he  is  a  citizen  of  the  United  States  and  of  the 

State  of  Pennsylvania,  that  he  resides  at ,  in 

County  of ,  in  the 

judicial  district  of  Pennsylvania,  and  has  resided  in  said 

State  for  the  past years ;  that  he  is 

years  of  age  and  upwards,  having  been  born  in , 

State   of ,   on   the day   of , 

A.  D 

2.  That  his  preliminary  education  has  been  as  follows : 

(The  applicant  must  here  state  the  Schools  and  Col- 
leges, if  any,  he  has  attended,  with  dates  of  entering  and 

407 


§  1,  Ap. 


APPENDIX. 


Application  for  Preliminary  Examination. 


leaving  each;  and  must  also  state  whether  he  graduated, 
and  the  degrees  he  has,  if  any.) 


Name  of 
School  or 
College 

Located  at 

Entered 

Left 

Graduated 
Yes  or  No 

Degrees 

Sworn  to  [or  affirmed]  and  sub- 
scribed before  me  this 

day  of A.   D 


Notary  Public. 
[Seal  here] 

I  desire  to  present  myself  for  examination  in  the  City 


of 


Signed 


(Applicant  sign  here.) 


(In  the  foregoing  blank  the  applicant  must  state 
whether  he  elects  to  be  examined  in  Philadelphia  or  Pitts- 
burgh.) 


408 


ADMISSION  OF  ATTORNEYS. 


Application  for  Preliminary  Examination.  §  1,  Ap. 

— Exhibit  A — Certificate  of  Good  Moral  Character. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of)   For  Examination  and 

I      Registration     as     a 
i       Student  at  Law. 


COMMONWEALTH  OF  PENNSYLVANIA 
COUNTY  OF.  . 


J    Iss. 


,  ....  and being  duly  sworn 

[or  affirmed],  according  to  law,  depose  and  say  that  they 
are  members  of  the  Bar  of  the  Court  of  Common  Pleas  of 

County,  in  the judicial  district 

of  Pennsylvania,  wherein  the  above-named  applicant  re- 
sides (or,  intends  to  practice) ;  that  they  personally  know 

the  said and  believe  him  to  be  of  good  moral 

character. 


Sworn  to  [or  affirmed]  and  sub- 


scribed before  me  this 
day  of A.   D.. , 


Notary  Public. 


Address 
Name 
Address 


Name 


Address 
[Seal  here] 


409 


FORMS. 

§  1,  Ap.         Application  for  Registration  without  Examination. 

§i._FORM    (A)    (A)    APPLICATION    FOR   REGIS- 
TRATION WITHOUT  EXAMINATION. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of]  For  Registration  as  a 

Student  at  Law, 
without  examina- 
tion. 


COMMONWEALTH  OF  PENNSYLVANIA 
COUNTY  OF.  . 


'   Iff. 


,  being  duly  sworn  [or  affirmed],  accord- 
ing to  law,  deposes  and  says : 

1.  That  he  is  the  applicant  above  named  and  the  per- 
son mentioned  in  the  annexed  exhibits  filed  with  this  ap- 
plication; that  he  is  a  citizen  of  the  United  States  and  of 

the  State  of  Pennsylvania,  and  resides  at ,  in 

County  of in  the 

judicial  district  of  Pennsylvania,  and  has  resided  in  said 

State  for  the  past years;  that  he  is 

years  of  age  and  upwards,  having  been  born  in 

in  the  State  of  •  • ,  on  the day  of 

,A.D 

2.  That  he  was  a  student  in  regular  attendance  at 

College   [or  University]   located  at 

in  the  State  of ,  for academic 

years,  to-wit: 

From  the ....  day  of . . . .  19 . . ,  to  the ....  day  of ....    19 .. 
From  the ....  day  of . .  . .  19 . . ,  to  the ....  day  of ....    19 .. 

410 


ADMISSION  OF  ATTORNEYS. 


Application  for  Registration  without  Examination.         §  1,  Ap. 

From  the. .  .  .day  of 19. .,  to  the. .  .  .day  of 19. . 

From  the ....  day  of . .  . .  19 . . ,  to  the ....  day  of 19 .. 

That  on  the day  of 19 , 

he  received  from  said the  degree  of 

in  course. 

3.  That  his  preliminary  education  other  than  that  set 
forth  in  paragraph  2  has  been  as  follows : 

(The  applicant  must  here  state  the  Schools  and  other 
Colleges,  if  any,  that  he  has  attended,  with  dates  of  enter- 
ing and  leaving  each;  and  he  must  also  state  whether  he 
graduated.) 


Name  of  School 
or  College 

Located  at 

Entered 

Left 

Graduated 
Yes  or  No 

Sworn  to  [or  affirmed]  and  sub- 
scribed before  me  this r   .  . 

day  of A.  D J  (APPhcant 


here.) 


[Seal  here] 


Notary  Public. 


411 


FORMS. 

§  1,  Ap.        Application  for  Registration  without  Examination. 

— Exhibit  A — Certificate  as  to  Attendance  at  Institution. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of")  For  Registration  as  a 

Student  at  Law, 
without  examina- 
tion. 


I, ,  hereby  certify  that  I  am  the 

of  the Department  of College 

[or  University]  and  that the  above  named  ap- 
plicant, was  a  student  in  regular  attendance  at  said 

Department  of for academic  years, 

to  wit : 

From  the ....  day  of . . . .  19 . . ,  to  the ....  day  of ....  19 .. 

From  the ....  day  of 19 . . ,  to  the ....  day  of 19 .. 

From  the ....  day  of . . . .  19 . . ,  to  the ....  day  of ....  19 .. 

From  the day  of . .  . .  19 . . ,  to  the ....  day  of ....  19 .. 

and  that  on  the day  of 19 , 

he  received  from  said  College  [or  University]  the  degree 
of in  course. 

IN  WITNESS  WHEREOF,  I  have  hereunto  set  my  hand  this 
day  of A.  D 


Witness : 


412 


ADMISSION  OF  ATTORNEYS. 


Application  for  Registration  without  Examination.         §  1,  Ap. 

— Exhibit  B — Certificate  of  Good  Moral  Character. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of)  For  Registration  as  a 

Student  at  Law, 
without  examina- 
tion. 

COMMONWEALTH  OF  PENNSYLVANIA,   ) 
COUNTY  OF 1^*' 

, ,  and ,  being 

duly  sworn,  according  to  law,  depose  and  say  that  they  are 
members  of  the  Bar  of  the  Court  of  Common  Pleas  of 

County,   in   the judicial    district 

of  Pennsylvania,  wherein  the  above-named  applicant  re- 
sides (or,  intends  to  practice) ;  that  they  personally  know 

the  said and  believe  him  to  be  of  good  moral 

character. 

Sworn  to  [or  affirmed]  and  sub-   ]  Name 

scribed  before  me  this 

A          c  A.     r\  Address 

day  of A.   D. 

Name   . .  . 

Address 
Notary  Public. 

Name   . . . 

Address 
[Seal  here] 


FORMS. 

§  2,  Ap.  Certificate  Recommending  Registration. 

§2.— CERTIFICATE  OF  STATE    BOARD    RECOM- 
MENDING REGISTRATION. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

Registration  Certificate  No 

Application  No 


To  the  Prothonotary  of  the  Supreme  Court  for  the. 
District  of  Penna. : 


The  State   Board  of  Law  Examiners   hereby  certifies 

that of County, 

in  the Judicial  District  of  Pennsylvania  is  quali- 
fied to  begin  the  study  of  the  law,  and  recommends  that  he 

be  registered  as  of  the day  of 

A.  D.  19... 

Given  at this day  of A.  D.  19 . . 

STATE  BOARD  OF  LAW  EXAMINERS, 

(Seal  here)  

Chairman. 
Attest : 


Secretary. 

[A  Certified  Copy  will  Contain  the  Following  Certificate:] 

I,   ,  Secretary  of  the  State  Board 

of  Law  Examiners,  Commonwealth  of  Pennsylvania,  cer- 

414 


ADMISSION  OF  ATTORNEYS. 


Law  Sch.  Student's  Application  for  Final  Exam.          §  3,  Ap. 

tify  that of County,  passed  a 

preliminary  examination  held  by  said  Board  on  the 

and days  of ,  and  that  the  above  is 

a  true  and  correct  copy  of  a  certificate  issued  to  him  by 

said  Board  on  the day  of A.  D 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and 

affixed  the  seal  of  said  Board  this day  of 

A.  D.. 


Secretary, 
[Seal  here] 

§3.  FORM  B.— APPLICATION  FOR  FINAL  EXAMI- 
NATION OF  LAW  SCHOOL  STUDENT. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  ]  For  Admission  to  the 

Bar  of  the  Supreme 
Court     of     Pennsyl- 
vania. 


COMMONWEALTH  OF  PENNSYLVANIA, 
COUNTY  OF.  . 


>ss. 


,  being  duly  sworn  [or  affirmed]  ac- 
cording to  law,  deposes  and  says : 

i.  That  he  is  the  applicant  above  named  and  the  person 
mentioned  in  the  annexed  exhibits  filed  with  this  applica- 
tion; that  he  is  a  citizen  of  the  United  States  and  of  the 
State  of  Pennsylvania;  that  he  has  resided  in  said  state  for 


FORMS. 

§  3,  Ap.         Law  Sch.  Student's  Application  for  Final  Exam. 

a  period  of years  last  past  and  now  resides  at  No. 

street,  in ,  County  of , 

in  the judicial  district  of  said  state;  that  he 

is  twenty-one  years  of  age  and  upwards,  to  wit  he  is 

years  old,  having  been  born  at ,  State  of 

,  on  the day  of , 

A.  D 

2.  That  he  passed  a  preliminary  examination  before  the 
State  Board  of  Law  Examiners,  and  that,  upon  recommen- 
dation of  said  Board,  he  was  duly  registered  as  a  student 

at  law  with  the  Prothonotary  for  the District 

of  the  Supreme  Court  of  Pennsylvania,  as  of  the 

day  of A.  D.  19. .  . .,  as  will  more  fully  appear 

in  the  certificate  of  said  Prothonotary,  which  is  hereunto 
annexed  marked  Exhibit  "A." 

3.  That  he  has  attended  the Law 

School,  situated  at during  three  school  years 

of  not  less  than  eight  months  each  and  of  an  average  of  not 
less  than  ten  hours  per  week  each  year,  as  follows,  to  wit : 

From  the. . .  .day  of ,  A.  D.  19. .  to  the day  of 

,  A.  D.  19 

From  the. . .  .day  of ,  A.  D.  19. .  to  the day  of 

,  A.  D.  19.... 

From  the day  of ,  A.  D.  19. .  to  the day  of 

,  A.  D.  19 

(noting,  nevertheless,  that  he  has  not  entirely  completed 
the  school  year  last  above  mentioned,  but  that  he  is  still 
in  attendance  upon  the  sessions  of  said  school  and  that  it 
is  his  intention  to  complete  the  full  time  of  attendance  re- 

416 


ADMISSION  OF  ATTORNEYS. 


Law  School  Student's  Application  for  Final  Examination.        §  3,  Ap. 

quired  for  the  school  year  last  above  mentioned  on  or  be- 
fore the  date  of  the  final  examination  fixed  by  the  State 

Board  of  Law  Examiners,  to  wit,  on  or  before , 

A.  D.  19.  .  .),  all  of  which  will  more  fully  appear  in  the 
certificate  of  the  Dean  of  said  Law  School,  which  is  here- 
unto annexed  marked  Exhibit  "B." 

4.  That  he  has  advertised  his  intention  to  apply  for  ex- 
amination and  admission  to  the  bar  of  the  Supreme  Court 
of  Pennsylvania,  in  accordance  with  the  provisions  of 
Rule  4  of  the  rules  regulating  admission  to  the  bar  of  said 

court,  in  the  "Legal  Intelligencer"  and  in , 

a  law  periodical  [or  newspaper  of  general  circulation]  pub- 
lished in  the  county  seat  of  the  County  of , 

within  which  deponent  resides,  once  a  week,  for  four  con- 
secutive weeks  immediately  preceding  the  date  of  filing 
these  credentials,  as  will  more  fully  appear  in  the  proofs 
of  the  publication  of  said  notice,  which  are  hereunto  an- 
nexed marked  Exhibits  "C"  and  "D." 

Sworn  [or  affirmed]  to  and  sub-' 

scribed  before  me  this 

day  of   f   [Applicant  sign  here] 

A.  D.  19 


Notary  Public. 
[Seal  here] 

I  desire  to  present  myself  for  examination  in  the  City  of 


[Applicant  sign  here] 

[In    the    foregoing    blank,    the    applicant    must    state 

417 
27 


FORMS. 

§  3,  Ap.         Law  School  Student's  Application  for  Final  Examination. 

whether  he  elects  to  be  examined  in  Philadelphia  or  Pitts- 
burgh.] 

— Exhibit  A — Prothonotary's  Certificate  of  Registration. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of "]  F°r  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 


Prothonotary's  Certificate  No, 


I, ,  hereby  certify  that  I  am  the  Prothon- 

otary  for  the District  of  the  Supreme  Court  of 

Pennsylvania,  and  that the  above-named 

applicant,  on A.  D.  19. .  . .,  filed  with 

me  a  certificate  issued  to  him  by  the  State  Board  of  Law 

Examiners,  being  Application  No ,  Registration 

Certificate  No ,  certifying  that  the  said 

was  qualified  to  begin  the  study  of  the  law  and 

recommending  that  he  be  registered  as  of  the 

day  of A.  D.  19. .  . .  ;  that  thereupon  said  ap- 
plicant was  registered  with  me  as  of  the day  of 

A.  D.  19. .  . .  ;  his  full  name  and  address  being 

And  the  name  and  address  of  the  law  school  in  which  he 
proposed  to  pursue  his  studies  being 


In  Witness  Whereof,  I  have  hereunto  set  my  hand  and 

418 


ADMISSION  OF  ATTORNEYS. 


Law  School  Student's  Application  for  Final  Examination.        §  3,  Ap. 

affixed  the  seal  of  the  Supreme  Court  of  Pennsylvania  this 
day  of A.  D.  19 .... 


[Prothonotary  sign  here] 
[Seal  here] 

— Exhibit  B — Certificate  of  Dean  of  Law  School  as  to 
Attendance. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  ^  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 

State  of  Pennsylvania,   ) 
County  of \ 

I,   ,  hereby  certify  that  I  am 

of  the Law  School,  situated  at 

,  in  the  State  of ,  and  that 

,  the  above-named  applicant,  was  in 

regular  attendance  as  a  student  in  said  law  school  for  a 
period  of  three  years  during  at  least  eight  months  in  each 
year  and  an  average  of  not  less  than  ten  hours  per  week 
each  year,  as  follows,  to  wit: 

From  the.  .day  of ,  A.  D.  19.  .to  the day  of. ... 

A.  D.  19.. . 

From  the.  .day  of ,  A.  D.  19.  .to  the day  of. ... 

A.  D.  19... 

419 


FORMS. 

§  3,  Ap.         Law  School  Student's  Application  for  Final  Examination. 

From  the . .  day  of ,  A.  D.  19 . .  to  the day  of .... 

A.  D.  19. .. 

(noting,  nevertheless,  that  said  applicant  has  not  entirely 
completed  the  school  year  last  above  mentioned,  but  that 
he  is  still  in  attendance  upon  the  sessions  of  said  school 
and  that  it  is  his  intention  to  complete  the  full  time  of  at- 
tendance of  the  said  year  last  above  mentioned),  and  that 
during  said  periods  the  said  applicant  has  pursued  the 
study  of  the  law  with  diligence. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and 

affixed  the  seal  of  the  said  Law  School  this 

day  of A.  D.  19 


[Seal  here] 

— Exhibit  C — Proof  of  Publication  of  Notice  of  Intended 
Application  in  Local  Periodical. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of "]  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 

Commonwealth  of  Pennsylvania,  ) 
County  of )  ' 

,  being  duly  sworn  [or  affirmed] 

according  to  law,  deposes  and  says  that  he  is  the 

of ,  a  law  periodical  [or  newspaper  of  general 

420 


ADMISSION  OF  ATTORNEYS. 


Law  School  Student's  Application  for  Final  Examination.        §  3,  Ap. 

circulation],  published  at the  county  seat 

of County,  Pennsylvania,  and  that  a  notice, 

of  which  the  advertisement  hereunto  attached  is  a  copy, 
was  published  in  the  said  law  periodical  [or  newspaper] 
once  a  week,  for  four  consecutive  weeks,  to  wit,  on  the  fol- 
lowing days  

(Here  insert  copy  of  notice.) 

Sworn  [or  affirmed]  to  and  sub- 
scribed before  me  this 

day  of A.  D.  19.. 


Notary  Public. 
[Seal  here] 

—Exhibit  D — Proof  of  Publication  of  Notice  of  Intended 
Application  in  Legal  Intelligencer. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  ^  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 

j 

Commonwealth  of  Pennsylvania, 


County  of 

,  being  duly  sworn  [or  affirmed] 

according  to  law,  deposes  and  says  that  he  is  the 

of  the  "Legal  Intelligencer,"  and  that  a  notice,  of 

421 


FORMS. 

§  3,  Ap.       Law  School  Student's  Application  for  Final  Examination. 

which  the  advertisement  hereunto  attached  is  a  copy,  was 
published  in  the  "Legal  Intelligencer"  once  a  week  for 
four  consecutive  weeks,  to  wit,  on  the  following  days .... 


(Here  insert  copy  of  notice.) 

Sworn  [or  affirmed]  to  and  sub- 
scribed before  me  this 

day  of A.  D.  19. . 


Notary  Public. 
[Seal  here] 

— Exhibit  E — Certificate  of  Good  Moral  Character. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  -|  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 

j 

Commonwealth  of  Pennsylvania,    ) 

C  ss 
County  of \ 

, ,  and 

,  being  duly  sworn  [or  affirmed] 

according  to  law,  depose  and  say  that  they  are  members 

of  the  bar  of  the  Court  of  Common  Pleas  of 

County,  in  the   judicial  district  of  Pennsyl- 

422 


ADMISSION  OF  ATTORNEYS. 


Office  Student's  Application  for  Final  Examination.        §  4,  Ap. 

vania,  wherein  the  above-named  applicant  resides  [or  in- 
tends to  practice] :  that  they  personally  know  the   said 

and  believe  him  to  be  of  good 

moral  character. 


Sworn  [or  affirmed]  to  and  sub-  ' 

scribed  before  me  this 

day  of A.  D.  19.  .. 

Notary  Public. 
(Seal  here.) 


Name  . . . 

Address 
Name  . . . 

Address 
Name  . . . 

Address 


§4,  FORM  C.— APPLICATION  FOR  FINAL  EXAMI- 
NATION OF  STUDENT  IN  LAW  OFFICE. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  -|  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 

j 

Commonwealth  of  Pennsylvania,  ) 

r*                 c  tss- 

County  of ^ 

,  being  duly  sworn  [or  affirmed] 

according  to  law,  deposes  and  says : 

i.  That  he  is  the  applicant  above  named  and  the  person 
mentioned  in  the  annexed  exhibits  filed  with  this  appli- 
cation; that  he  is  a  citizen  of  the  United  States  and  of  the 
State  of  Pennsylvania;  that  he  has  resided  in  said  State 

423 


FORMS. 

§  4,  Ap.        Office  Student's  Application  for  Final  Examination. 

for  a  period  of years  last  past  and  now  resides 

at  No , street,  in , 

County  of ,  in  the judicial 

district  of  said  State;  that  he  is  twenty-one  years  of  age 

and  upwards,  to  wit,  he  is years  old,  having 

been  born  at ,  State  of , 

on  the day  of ,  A.  D 

2.  That  he  passed  a  preliminary  examination  before  the 
State  Board  of  Law  Examiners,  and  that,  upon  recom- 
mendation of  said   Board,   he  was  duly  registered   as   a 

student  at  law  with  the  Prothonotary  for  the 

District  of  the  Supreme  Court  of  Pennsylvania,  as  of  the 

day  of    A.   D.    19 .  . ,   as  will 

more  fully  appear  in  the  certificate  of  said  Prothonotary, 
which  is  hereunto  annexed  marked  Exhibit  "A." 

3.  That  he  has  served  bona  fide  a  regular  clerkship  in 
the  office  of  a  practicing  attorney  of  the  Supreme  Court  of 
Pennsylvania,  for  a  period  of  three  years,  to  wit,  in  the 

office  of ,  at  No ,  in  the  City  of 

,  County  of ,  in  the 

judicial  district  of  said  State,  from  the day 

of   A.  D.   19 to  the day  of 

A.  D.   19.  .  .  .,  as  will  more  fully  appear  in 

the  affidavit  of  said  attorney,  which  is  hereunto  annexed 
marked  Exhibit  "B." 

4.  That  he  has  advertised  his  intention  to  apply  for  ex- 
amination and  admission  to  the  Bar  of  the  Supreme  Court 
of   Pennsylvania,    in    accordance   with    the    provisions    of 
Rule  4  of  the  rules  regulating  admission  to  the  Bar  of 

said  court,  in  the  "Legal  Intelligencer"  and  in 

,  a  law  periodical  [or  newspaper  of  general  circu- 
lation]   published   in   the   county   seat   of   the    county   of 
,  within  which  deponent  resides  once  a  week, 


ADMISSION  OF  ATTORNEYS. 


Office  Student's  Application  for  Final  Examination.        §  4,  Ap. 

for  four  consecutive  weeks  immediately  preceding  the  date 
of  filing  these  credentials,  as  will  more  fully  appear  in  the 
proofs  of  publication  of  said  notice  which  are  hereunto 
annexed  marked  Exhibits  "C"  and  "D." 

Sworn  [or  affirmed]  to  and  sub-  ^ 

scribed  before  me  this (, 

,         ,  \    r\  (      [Applicant  sign  here.] 

day  of A.  D.  19 . .    ) 


Notary  Public. 
(Seal  here.) 

I  desire  to  present  myself  for  examination  in  the  City  of 


(Applicant  sign  here.) 

[In  the  foregoing  blank,  the  applicant  must  state 
whether  he  elects  to  be  examined  in  Philadelphia  or  Pitts- 
burgh.] 

— Exhibit  A — Prothonotary's  Certificate  of  Registration. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  "]  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 

Prothonotary's  Certificate  No 


I,   ,  hereby  certify  that  I  am  the 

Prothonotary  for  the District  of  the  Supreme 

425 


FORMS. 

§  4,  Ap.        Office  Student's  Application  for  Final  Examination. 

Court  of  Pennsylvania,  and  that the 

above-named  applicant,  on A.  D.  19. ., 

filed  with  me  a  certificate  issued  to  him  by  the  State  Board 
of  Law  Examiners,  being  Application  No ,  Regis- 
tration Certificate  No ,  certifying  that  the  said 

was  qualified  to  begin  the  study  of  the 

law  and  recommending  that  he  be  registered  as  of  the 

day  of A.  D.  19 . .  ;  that 

thereupon  said  applicant  was  registered  with  me  as  of  the 

day  of A.  D.  19. .;  his  full  name 

and  address  being 

And  the  name  and  address  of  the  Attorney  in  whose  office 
he  proposed  to  pursue  his  studies  being 


In  witness  whereof,  I  have  hereunto  set  my  hand  and 
affixed  the  seal  of  the  Supreme  Court  of  Pennsylvania  this 
day  of A.  D.  19 .... 


(Seal  here.)  [Prothonotary  sign  here.] 

—Exhibit  B— Preceptor's  Certificate  of  Clerkship. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  ")  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 

Commonwealth  of  Pennsylvania,    ^ 
County  of \ss- 

426 


ADMISSION  OF  ATTORNEYS. 


Office  Student's  Application  for  Final  Examination.        §  4,  Ap. 

,  being  duly  sworn  [or  affirmed] 

according  to  law,  deposes  and  says  that  he  is  and  was  at 
the  dates  hereinafter  stated  a  member  of  the  bar  of  the 
Supreme  Court  of  Pennsylvania  and  of  the  Court  of  Com- 
mon Pleas  of County,  in  the 

judicial  district  of  Pennsylvania,   with    his   office   at    No. 

City  of ,  County  of , 

Pennsylvania;  that ,  the  above-mentioned 

applicant,  served  bona  fide  a  regular  clerkship  in  the  de- 
ponent's law  office,  for  a  period  of  three  years,  to  wit,  from 

the day  of A.  D.  19. .,  to  the 

day  of A.  D.   19. .;  that  during 

this  period  the  said  applicant  pursued  the  study  of  the  law 
with  diligence,  and  was  in  regular  attendance  at  the  de- 
ponent's law  office  an  average  of months  in 

each  year,  and  an  average  of hours  a  day  dur- 
ing said  months. 

Sworn  [or  affirmed]  to  and  sub-  \ 

scribed  before  me {.   

day  of A.  D.  19. .    ) 


Notary  Public. 
(Seal  here.) 

— Exhibit  C — Proof  of  Publication  of  Notice  of  Intend- 
ed Application  in  Local  Periodicals. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  "]  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 

427 


FORMS. 


§  4,  Ap.        Office  Student's  Application  for  Final  Examination. 


Commonwealth  of  Pennsylvania, 
County  of 


ss. 


,  being  duly  sworn  [or  affirmed] 

according  to  law,  deposes  and  says  that  he  is  the 

of ,  a  law  periodical  [or  newspaper  of  general 

circulation],   published   at ,   the   county   seat 

of county,  Pennsylvania,  and  that  a  notice,  of 

which  the  advertisement  hereunto  attached  is  a  copy,  was 
published  in  the  said  law  periodical  [or  newspaper]  once 
a  week,  for  four  consecutive  weeks,  to  wit,  on  the  follow- 
ing days 

(Here  insert  copy  of  notice.) 

Sworn  [or  affirmed]  to  and  sub- 
scribed before  me  this 

day  of A.  D.  19. . 


(Seal  here.) 


Notary  Public. 


— Exhibit  D. — Proof  of  Publication  of  Notice  of  Intend- 
ed Application  in  the  "Legal  Intelligencer." 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 


In  the  matter  of  the  application  of 


Commonwealth  of  Pennsylvania, 
County  of 

428 


For  Admission  to  the 
Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 


•  ss. 


ADMISSION  OF  ATTORNEYS. 


Office  Student's  Application  for  Final  Examination.        §  4,  Ap. 

,  being  duly  sworn  [or  affirmed] 

according  to  law,  deposes  and  says  that  he  is  the 

of  the  "Legal  Intelligencer,"  and  that  a  notice,  of  which 
the  advertisement  hereunto  attached  is  a  copy,  was  pub- 
lished in  the  "Legal  Intelligencer"  once  a  week,  for  four 
consecutive  weeks,  to  wit,  on  the  following  days 

(Here  insert  copy  of  notice.) 

Sworn  [or  affirmed]  to  and  sub- 
scribed before  me  this 

day  of A.  D.  19. . 


Notary  Public. 
(Seal  here.) 

—Exhibit  E. — Certificate  of  Good  Moral  Character. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  ^  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 

s 

Commonwealth  of  Pennsylvania,  \ 

i$£ 

County  of ^ 

,   ,  and 

,  being  duly  sworn  [or  affirmed]  accord- 
ing to  law,  depose  and  say  that  they  are  members  of  the 

bar  of  the  Court  of  Common  Pleas  of County, 

in  the judicial  district  of  Pennsylvania,  where- 

429 


FORMS. 

§  5,  Ap.     Office  and  Law  Sch.  Student's  Application  for  Final  Exam. 

in  the  above-named  applicant  resides  [or  intends  to  prac- 
tice] ;  that  they  personally  know  the  said and 

believe  him  to  be  of  good  moral  character. 


Sworn  [or  affirmed]  to  and  sub-^  Name 


scribed  before  me  this .... 
day  of A.  D.  19. 

Notary  Public. 
( Seal  here.) 


Address 
Name 

Address 
Name 

Address 


§5,  FORM  D.— APPLICATION  FOR  FINAL  EX- 
AMINATION BY  STUDENT  WHO  HAS  STUDIED 
PARTLY  IN  LAW  SCHOOL  AND  PARTLY  IN  LAW 
OFFICE. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of "]  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 

COMMONWEALTH  OF  PENNSYLVANIA, 


cc* 
UF 

,  being  duly  sworn  [or  affirmed] 

according  to  law,  deposes  and  says : 

i.  That  he  is  the  applicant  above-named  and  the  per- 
son mentioned  in  the  annexed  exhibits,  filed  with  this  ap- 
plication; that  he  is  a  citizen  of  the  United  States  and  of 
the  State  of  Pennsylvania ; ;  that  he  has  resided  in  said 
state  for  a  period  of years  last  past  and  now 

430 


ADMISSION  OF  ATTORNEYS. 


Office  and  Law  Sch.  Student's  Application  for  Final  Exam.         §  5,  Ap. 

resides  at  No street,  in County 

of ,  in  the judicial  district  of  said 

state;  that  he  is  twenty-one  years  of  age  and  upwards,  to 

wit,  he  is years  old,  having  been  born  at 

,  state  of ,  on  the 

day  of A.  D 

2.  That  he  passed  a  preliminary  examination  before  the 
State  Board  of  Law  Examiners,  and  that,  upon  recom- 
mendation of  said  board,  he  was  duly  registered  as  a 

student  at  law  with  the  prothonotary  for  the 

district  of  the  Supreme  Court  of  Pennsylvania  as  of  the 
day  of ,  A.  D.  19.  .,  as  will  more  fully  ap- 
pear in  the  certificate  of  said  prothonotary,  which  is  here- 
unto annexed  marked  Exhibit  "A." 

3.  That  he  has  attended  the law  school 

situated  at during school 

years  of  not  less  than  eight  months  each  and  of  an  average 
of  not  less  than  ten  hours  per  week  each  year,  as  follows, 
to  wit: 

From  the day  of ,  A.  D.  19. .,  to  the day 

of ,  A.  D.  19... 

From  the day  of ,  A.  D.  19. .,  to  the day 

of ,  A.  D.  19... 

From  the day  of ,  A.  D.  19. .,  to  the day 

of ,  A.  D.  19... 

(noting,  nevertheless  that  he  has  not  entirely  completed 
the  school  year  last  above-mentioned,  but  that  he  is  still  in 
attendance  upon  the  sessions  of  said  school  and  that  it 
is  his  intention  to  complete  the  full  time  of  attendance  re- 
quired for  the  school  year  last  above-mentioned  on  or 
before  the  date  of  the  final  examination  fixed  by  the  State 


FORMS. 

§  5,  Ap.         Office  and  Law  Sch.  Student's  Application  for  Final  Exam. 

Board  of  Law  Examiners,  to  wit,  on  or  before 

A.  D.  19. . ),  all  of  which  will  more  fully  appear  in  the  cer- 
tificate of  the  dean  of  said  law  school,  which  is  hereunto 
annexed  marked  Exhibit  "B." 

4.  That  he  has  served  bona  fide  a  regular  clerkship  in  the 
office  of  a  practicing  attorney  of  the  Supreme  Court  of 

Pennsylvania  for  a  period  of years,  to  wit,  in 

the  office  of ,  at  No ,  in  the  city 

of county  of ,  in  the 

judicial  district  of  said  state,  from  the day  of 

,  A.  D.  19 .  . ,  to  the day  of , 

A.  D.  19.  .,  as  will  more  fully  appear  in  the  affidavit  of  said 
attorney,  which  is  hereunto  annexed  marked  Exhibit  "C." 

5.  That  he  has  advertised  his  intention  to  apply  for  ex- 
amination and  admission  to  the  bar  of  the  Supreme  Court 
of  Pennsylvania,  in  accordance  with  the  provisions  of  Rule 
4,  of  the  rules  regulating  admission  to  the  bar  of  said  court, 
in  the  "Legal  Intelligencer"  and  in a  law  per- 
iodical [or  newspaper  of  general  circulation]  published  in 

the  county  seat  of  the  county  of ,  within  which 

deponent  resides,  once  a  week,  for  four  consecutive  weeks 
immediately  preceding  the  date  of  filing  these  credentials, 
as  will  more  fully  appear  in  the  proofs  of  publication  of  said 
notice  which  are  hereunto  annexed  marked  Exhibits  "D" 
and  "E." 

Sworn  [or  affirmed]  to  and  sub- ") 

scribed  before  me  this L  '  */A '"'*'' 

(Applicant  sign  here.) 
day  of A.  D.  19. ..  I 


Notary  Public. 
(Seal  here.) 

432 


ADMISSION  OF  ATTORNEYS. 


Office  and  Law  Sch.  Student's  Application  for  Final  Exam.        §  5,  Ap. 

I  desire  to  present  myself  for  examination  in  the  city  of 


(Applicant  sign  here.) 

(In  the  foregoing  blank,  the  applicant  must  state 
whether  he  elects  to  be  examined  in  Philadelphia  or  Pitts- 
burgh.) 

— Exhibit  A. — Prothonotary's  Certificate  of  Registra- 
tion. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  ]  F°r  Admission  to  the 

Bar  of  the  Supreme 
Court    of    Pennsyl- 
*  J      vania. 

Prothonotary's  Certificate  No 

I, ,  hereby  certify  that  I  am 

the  prothonotary  for  the district  of  the  Su- 
preme Court  of  Pennsylvania,  and  that ,  the 

above-named  applicant,  on ,  A.  D.  19. .,  filed 

with  me  a  certificate  issued  to  him  by  the  State  Board  of 

Law  Examiners,  being  Application  No ,  Registration 

Certificate  No ,  certifying  that  the  said 

was  qualified  to  begin  the  study  of  the  law  and  recommend- 
ing that  he  be  registered  as   of  the day  of 

A.   D.    19..;   that  thereupon  said  applicant 

was  registered  with  me  as  of  the day  of , 

A.  D.  19. .;  his  full  name  and  address  being 


433 
28 


FORMS. 

§  5a.  Of.  and  Law  Sch.  Student's  Ap.  for  Final  Exam. 

and  the  names  and  addresses  of  the  law  school  and  of  the 
preceptor  in  whose  law  office  he  proposed  to  pursue  his 
studies  being 


In  witness  whereof,  I  have  hereunto  set  my  hand  and 
affixed  the  seal  of  the  Supreme  Court  of  Pennsylvania  this 
day  of A.  D.  19 


(Prothonotary  sign  here.) 
(Seal  here.) 

— Exhibit  B. — Certificate  of  Dean  of  Law  School  as  to 
Attendance. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  "]  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 

COMMONWEALTH  OF  PENNSYLVANIA, 
COUNTY  OF 

I, ,  hereby  certify  that  I  am 

of  the law  school,  situated  at 

in  the  state  of ,  and  that , 

the  above-named  applicant,  was  in  regular  attendance  as  a 

student  in  said  law  school  for  a  period  of 

years  during  at  least  eight  months  in  each  year  and  an 

434 


ADMISSION  OF  ATTORNEYS. 


Of.  and  Law  Sch.  Student's  Ap.  for  Final  Exam.  §  5a. 

average  of  not  less  than  ten  hours  per  week  each  year,  as 
follows,  to  wit : 

From  the day  of ,  A.  D.  19 . . ,  to  the day 

of ,  A.  D.  19... 

From  the day  of ,  A.  D.  19 . . ,  to  the day 

of ,  A.  D.  19... 

From  the day  of ,  A.  D.  19 . . ,  to  the day 

of ,  A.  D.  19... 

(noting,  nevertheless,  that  said  applicant  has  not  entirely 
completed  the  school  year  last  above-mentioned,  but  that 
he  is  still  in  attendance  upon  the  sessions  of  said  school 
and  that  it  is  his  intention  to  complete  the  full  time  of  at- 
tendance of  the  said  year  last  above-mentioned),  and  that 
during  said  periods  the  said  applicant  has  pursued  the  study 
of  the  law  with  diligence. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and 

affixed  the  seal  of  the  said  law  school  this day 

of ,  A.  D.  19 


(Seal  here.) 
— Exhibit  C. — Preceptor's  Certificate  of  Clerkship. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  ]  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 

435 


FORMS. 

§  5,  Ap.        Office  and  Law  Sch.  Student's  Application  for  Final  Exam. 

COMMONWEALTH  OF  PENNSYLVANIA,   ) 
COUNTY  OF ys' 

,  being  duly  sworn  [or  affirmed] 

according  to  law,  deposes  and  says  that  he  is  and  was  at 
the  dates  hereinafter  stated  a  member  of  the  bar  of  the 
Supreme  Court  of  Pennsylvania  and  of  the  Court  of  Com- 
mon Pleas  of county,  in  the judicial 

district  of  Pennsylvania,  with  his  office  at  No , 

city  of ,  county  of ,  Pennsylvania ; 

that the  above-named  applicant,  served  bona 

fide  a  regular  clerkship  in  the  deponent's  law  office  for  a 

period  of  three  years,  to  wit,  from  the day  of 

,  A.  D.  19 . . ,  to  the day  of , 

A.  D.  19. .  ;  that  during  this  period  the  said  applicant  pur- 
sued the  study  of  law  with  diligence,  and  was  in  regular 
attendance  at  the  deponent's  law  office  an  average  of 

months  in  each  year  and  an  average  of 

hours  a  day  during  said  months. 

Sworn  [or  affirmed]  to  and  sub- 
scribed before  me  this 

day  of A.  D.  19. .. 


Notary  Public. 
(Seal  here.) 


436 


ADMISSION  OF  ATTORNEYS. 


Office  and  Law  Sch.  Student's  Application  for  Final  Exam.       §  5,  Ap. 

— Exhibit  D. — Proof  of  Publication  of  Notice  of  Intend- 
ed Application  in  Local  Periodical. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  ^  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 


COMMONWEALTH  OF  PENNSYLVANIA, 
COUNTY  OF  . . 


k*f. 


,  being  duly  sworn  [or  affirmed] 

according  to  law,  deposes  and  says  that  he  is  the 

of ,  a  law  periodical   [or  newspaper 

of  general  circulation]  published  at ,  the  county 

seat  of county,  Pennsylvania,  and  that  a  notice, 

of  which  the  advertisement  hereunto  attached  is  a  copy, 
was  published  in  the  said  law  periodical  [or  newspaper] 
once  a  week,  for  four  consecutive  weeks,  to  wit,  on  the 
following  days  

(Here  insert  copy  of  notice.) 

Sworn  [or  affirmed]  to  and  sub- 
scribed before  me  this 

day  of A.  D.  19. 


Notary  Public. 
(Seal  here.) 

437 


FORMS. 

§  5,  Ap.      Office  and  Law  Sch.  Student's  Application  for  Final  Exam. 

— Exhibit  E. — Proof  of  Publication  of  Notice  of  Intend- 
ed Application  in  "Legal  Intelligencer." 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  ^  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 

COMMONWEALTH  OF  PENNSYLVANIA,    ) 
COUNTY  OF ys' 

,  being  duly  sworn  [or  affirmed] 

according  to  law,  deposes  and  says  that  he  is  the 

of  the  "Legal  Intelligencer,"  and  that  a  notice,  of  which 
the  advertisement  hereunto  attached  is  a  copy,  was  pub- 
lished in  the  "Legal  Intelligencer"  once  a  week  for  four 
consecutive  wreeks,  to  wit,  on  the  following  days 


(Here  insert  copy  of  notice.) 

Sworn  [or  affirmed]  to  and  sub-  1 

scribed  before  me  this L 

day  of A.  D.  19. .. 


Notary  Public. 

(Seal  here.) 

438 


ADMISSION  OF  ATTORNEYS. 


Office  and  Law  Sch.  Student's  Application  for  Final  Exam.       §  5,  Ap. 

— Exhibit  F. — Certificate  of  Good  Moral  Character. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  ]  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 

COMMONWEALTH  OF  PENNSYLVANIA.    ) 

f    MA 

COUNTY  OF y 

,   ,  and 

,  being  duly  sworn  [or  affirmed]  according  to 

law,  depose  and  say  that  they  are  members  of  the  bar  of 

the  Court  of  Common  Pleas  of county,  in  the 

judicial  district  of  Pennsylvania,  wherein  the 

above-named  applicant  resides  [or  intends  to  practice]  ; 
that  they  personally  know  the  said and  be- 
lieve him  to  be  of  good  moral  character. 

Sworn  [or  affirmed]  to  and  sub-  1    Name 

scribed  before  me  this A  , 

.     _  Address 

day  of A.  D.  19.., 

Name  .... 

Address 

Notary  Public. 

Name   . . 

Address 
(Seal  here.) 


439 


FORMS. 

§  6,  Ap.        Att'y  of  other  State  (1  yr.'s  Standing),  Ap.  for  Final  Exam. 

§6,  FORM  E.—  APPLICATION  FOR  FINAL  EX- 
AMINATION BY  ATTORNEY  OF  ONE  YEAR'S 
STANDING  IN  ANOTHER  STATE. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  "]  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 


State  of 
County  of 


.....................  ,  being  duly  sworn  [or  affirmed] 

according  to  law,  deposes  and  says: 

1.  That  he  is  the  applicant  above-named  and  the  person 
mentioned  in  the  annexed  exhibits  filed  with  this  applica- 
tion; that  he  is  a  citizen  of  the  United  States  and  of  the 
state  of  Pennsylvania,  and  resides  at  No  ...........  street, 

in  ............  ,  county  of  .............  in  the  ........... 

judicial  district  of  said  state;  that  he  is  twenty-one  years 
of  age  and  upwards,  to  wit,  he  is  ..........  years  old  and 

was  born  at  ..........  state  of  ..........  ,  on  the  ......... 

..........  day  of  .......  ...A.  D  ...... 

2.  That  he  is  a  member  in  good  and  regular  standing 
of  the  bar  of  a  court  of  record  of  the  state  of  ............  , 

from  which  he  came,  to  wit,  of  the  court  of  ............  , 

state  of  ............  and  has  practiced  at  the  bar  of  said 

court  for  at  least  one  year,  to  wit,  from  the  ..........  day 

of  ..........  A.  D.  19  .  .  to  the  ..........  day  of  .......... 

440 


ADMISSION  OF  ATTORNEYS. 


Att'y  of  other  State  ( 1  yr.'s  Standing),  Ap.  for  Final  Exam.       §  6,  Ap. 

A.  D.  19. .,  as  will  more  fully  appear  by  the  certificate  of 
the  judge  of  said  court,  hereunto  annexed,  marked  Ex- 
hibit "A." 

3.  That  he  has  advertised  his  intention  to  apply  for  ex- 
amination and  admission  to  the  bar  of  the  Supreme  Court 
of  Pennsylvania  in  accordance  with  the  provisions  of  Rule 
9,  of  the  rules  regulating  admission  to  the  bar  of  said  court, 

in  the  "Legal  Intelligencer,"  and  in 

a  law  periodical  [or  newspaper  of  general  circulation]  pub- 
lished in  the  county  seat  of county,  in  which  the 

deponent  resides,  once  a  week,  for  four  consecutive  weeks 
immediately  preceding  the  date  of  filing  these  credentials, 
as  will  more  fully  appear  by  the  proofs  of  the  publication 
of  said  notice  hereunto  annexed  marked  Exhibits  "B" 
and  "C." 

Sworn  [or  affirmed]  to  and  sub-  "j 

scribed  before  me  this L  A  _.       ,         ., 

f  A    TX  [Applicant  Sign  here.] 

day  of ,  A.  D.  19..  J 


Notary  Public. 
(Seal  here.) 

I  desire  to  present  myself  for  examination  in  the  city  of 


(Applicant  sign  here.) 

(In  the  foregoing  blank,  the  applicant  must  state  whether 
he  elects  to  be  examined  in  Philadelphia  or  Pittsburgh.) 


441 


FORMS. 

§  6,  Ap.       Att'y  of  other  State  (1  yr.'s  Standing),  Ap.  for  Final  Exam. 

—Exhibit  A. — Certificate  of  Judge  of  a  Court  of  Record 
in  Other  State. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  ^  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 


State  of.. 
County  of, 


"j"- 


I,   ,  a  judge  of  one  of  the  courts  of 

record  of  the  state  of ,  to  wit,  of  the  court  of 

do  hereby  certify  that  I  am  acquainted  with 

,  the  above-named  applicant  for  admission  to 

the  bar  of  the  Supreme  Court  of  Pennsylvania,  and  that 

the   said is   a   member   in   good   and   regular 

standing  of  the  bar  of  this  court,  and  that  he  has  practiced 

at  this  bar  for  at  least  one  year,  to  wit,  from  the 

day  of A.  D.  19.  .to  the day  of 

A.  D.  19... 

Witness  my  hand  and  the  seal  of  said  court  this 

day  of A.  D.  19. .. 


(Seal  here.) 


State  of 
County  of 


I,  ............  ,  clerk  of  the  court  of  ..........  ,  State 

of  ..........  and  keeper  of  its  records  and  seal,   hereby 


442 


ADMISSION  OF  ATTORNEYS. 


Att'y  of  other  State  (1  yr.'s  Standing),  Ap.  for  Final  Exam.       §  6,  Ap. 

certify  that ,  whose  name  is  subscribed  to 

the  foregoing  certificate,  is  a  judge  of  this  court,  having 

been  duly  commissioned  in  the  year ;  that  I  am 

acquainted  with  his  handwriting,  and  that  his  above  signa- 
ture is  genuine. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and 

affixed  the  seal  of  the  said  court  this day  of 

,A.  D.  19.... 


(Seal  here.) 


— Exhibit  B. — Proof  of  Publication  of  Notice  of  Intend- 
ed Application  in  "Legal  Intelligencer." 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  -|  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 


COMMONWEALTH  OF  PENNSYLVANIA 
COUNTY  OF.  . 


'   Iss. 


,  being  duly  sworn  [or  affirmed] 

according  to  law,  deposes  and  says  that  he  is  the 

of  the  "Legal  Intelligencer,"  and  that  a  notice,  of  which 
the  advertisement  hereunto  attached  is  a  copy,  was  pub- 
lished in  the  "Legal  Intelligencer,"  once  a  week,  for  four 


443 


FORMS. 
§  6,  Ap.     Att'y  of  other  State  (1  yr.'s  Standing),  Ap.  for  Final  Exam. 

consecutive  weeks,  to  wit,  on  the  following  days 


(Here  insert  copy  of  notice.) 

Sworn  [or  affirmed]  to  and  sub- 
scribed before  me  this 

day  of ,  A.  D.  19. 


Notary  Public. 
(Seal  here.) 

— Exhibit  C. — Proof  of  Publication  of  Notice  of  Intend- 
ed Application  in  Local  Periodical. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  1  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 

COMMONWEALTH  OF  PENNSYLVANIA,   ) 

r*  \SS. 

COUNTY  OF ^ 

being  duly   sworn    [or   affirmed] 

according  to  law,  deposes  and  says  that  he  is  the 

of ,  a  law  periodical  [or  newspaper  of  general 

circulation],  published  at ,  the  county  seat  of 

county,  Pennsylvania,  and  that  a  notice,  of  which  the  ad- 
vertisement hereunto  attached  is  a  copy,  was  published  in 

444 


ADMISSION  OF  ATTORNEYS. 


Att'y  of  other  State  (1  yr.'s  Standing),  Ap.  for  Final  Exam.     §  6,  Ap. 

the  said  law  periodical  [or  newspaper]  once  a  week  for  four 
consecutive  weeks,  to  wit,  on  the  following  days 


(Here  insert  copy  of  notice.) 

Sworn  [or  affirmed]  to  and  sub- 
scribed before  me  this 

day  of ,  A.  D.  19. .. 


Notary  Public. 
(Seal  here.) 

—Exhibit  D.— Certificate  of  Good  Moral  Character. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  ]  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 


COMMONWEALTH  OF  PENNSYLVANIA, 
COUNTY  OF  . .  


f  ss. 


and being  duly  sworn  [or  affirmed]  according 

to  law,  depose  and  say  that  they  are  members  of  the  bar 

of  the  Court  of  Common  Pleas  of county,  in  the 

judicial  district  of  Pennsylvania,  wherein  the 

above-named  applicant  resides   [or,  intends  to  practice]  ; 

445 


FORMS. 

§  7,  Ap.        Att'y  of  other  State  (5  yr.'s  Standing),  Ap.  for  Final  Exam. 

that  they  personally  know  the  said and  believe 

him  to  be  of  good  moral  character. 


Sworn  [or  affirmed]  to  and  sub- 
scribed before  me  this. . 


day  of A.  D.  19, 


Address 
Name 

Address 
Name 

Address 
(Seal  here.) 


Notary   Public. 


Name 


§7,  FORM  R— APPLICATION  FOR  ADMISSION 
BY  ATTORNEY  OF  FIVE  YEARS'  STANDING  IN 
ANOTHER  STATE. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  ^  For  Admission  to  the 

Bar  of  the  Supreme 
Court    of    Pennsyl- 
'  J       vania. 

COMMONWEALTH  OF  PENNSYLVANIA,   ) 
COUNTY  OF y   ' 

being  duly  sworn  [or  affirmed] 

according  to  law,  deposes  and  says : 

i.  That  he  is  the  applicant  above-named  and  the  per- 
son mentioned  in  the  annexed  exhibits  filed  with  this  ap- 
plication; that  he  is  a  citizen  of  the  United  States  and  of 

the  State  of  Pennsylvania;  and  resides  at  No 

street,  in ,  county  of in  the 

446 


ADMISSION  OF  ATTORNEYS. 


Att'y  of  other  State  (5  yr.'s  Standing),  Ap.  for  Final  Exam.      §7,  Ap. 

judicial  district  of  said  state;  that  he  is years  of 

age,  and  was  born  at in  the  state  of 

on  the day  of ,  A.  D 

2.  That  he  is  a  member  in  good  and  regular  standing  of 
the  bar  of  the  Appellate  Court  of  last  resort  of  the  state 

of ,   from  which   he  came,   as  will   more   fully 

appear  by  the  certificate  of  said  court  hereunto  annexed 
marked  Exhibit  "A." 

3.  That  he  is  a  member  in  good  and  regular  standing  of 

the  bar  of  a  court  of  record  of  the  state  of to 

wit,  of  the  court  of in  said  commonwealth 

and  that  he  has  practiced  at  the  bar  of  said  court  for  at 

least  five  years,  to  wit,  from  the day  of , 

A.  D.  19. .,  to  the day  of A.  D.  19. ., 

as  will  more  fully  appear  by  the  certificate  of  said  court 
hereunto  annexed  marked  Exhibit  "B." 

4.  That  he  has  advertised  his  intention  to  apply  for  ad- 
mission to  the  bar  of  the  Supreme  Court  of  Pennsylvania, 
tince  a  week  for  four  consecutive  weeks  immediately  pre- 
ceding the  date  of  this  application,  in  the  "Legal  Intel- 
ligencer," and  in  a  law  periodical  [or  newspaper  of  general 
circulation]  published  in  the  county  seat  of  the  county  of 

,  within  which  deponent  resides  [or  intends  to 

practice],  as  will  more  fully  appear  by  the  proofs  of  pub- 
lication of  said  notice  hereunto  annexed  and  marked  Ex- 
hibits "C"  and  "D." 

Sworn  [or  affirmed]  to  and  sub- 
scribed before  me  this 

day  of ,  A.  D.  19. ..  J      (APPlicant  siSn  here-> 


Notary  Public. 
(Seal  here.) 

447 


FORMS. 


§  7,  Ap.       Att'y  of  other  State  (5  yr.'s  Standing),  Ap.  for  Final  Exam. 


— Exhibit  A. — Certificate  of  Judge  of  Appellate  Court  of 
Last  Resort  of  Other  State. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  ^  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 


State  of. . 
County  of, 


Iss. 


,  being 


I, ,  one  of  the  judges  of 

the  appellate  court  of  last  resort  of  the  state  of , 

do  hereby  certify  that ,  the  above-named  appli- 
cant for  admission  to  the  bar  of  the  Supreme  Court  of 
Pennsylvania  is  a  member  in  good  and  regular  standing 
of  the  bar  of  this  court. 

Witness  my  hand  and  the  seal  of  said  court,  this 

day  of ,  A.  D.  19 .... 


(Seal  here.) 


State  of . . 
County  of. 


Iss. 


I,  clerk  of ,  state  of ,  and  keeper  of 

the  records  and  seal   of    said    court   hereby    certify   that 

,  whose  name  is  subscribed  to  the  foregoing 

certificate,  is  a  judge  of  this  court,  having  been  duly  com- 
missioned in  the  year  A.  D ;  that  I  am  acquainted 

448 


ADMISSION  OF  ATTORNEYS. 


Att'y  of  other  State  (5  yr.'s  Standing),  Ap.  for  Final  Exam.       §7,  Ap. 

with  his  hand-writing,  and   that  his   above   signature  is 
genuine. 

In  witness  whereof,  I  have  hereunto  set  my  hand,  and 

affixed   the   seal  of   said  court,   this    day   of 

,A.  D.  19.... 


(Seal  here.) 

— Exhibit  B. — Certificate  of  Judge  of  a  Court  of  Record 
of  Other  State. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  *j  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 


State  of ) 

Iss. 


County  of, 


I, ,  a  judge  of  one  of  the  courts  of  record  of 

the  state  of ,  to  wit,  of  the  court  of , 

do  hereby  certify  that  I  am  acquainted  with ,  the 

above-named  applicant  for  admission  to  the  bar  of  the  Su- 
preme Court  of  Pennsylvania,  and  that  the  said 

ib  a  member  in  good  and  regular  standing  of  the  bar  of 
this  court,  and  that  he  has  practiced  at  this  bar  for  at  least 

five  years,  to  wit,  from  the day  of , 

A.  D ,  to  the day  of A.  D 

449 
29 


FORMS. 

§  7,  Ap.  Att'y  of  other  State  (5  yr.'s  Standing),  Ap.  for  Final  Exam. 

Witness  my  hand  and  the  seal  of  said  court  this , 

day  of ,  A.  D.  19 


(Seal  here.) 


Slate  of 
County  of 


I,  clerk  of  the  court  of  ..........    state  of  ..........  , 

and  keeper  of  its  records  and    seal,    hereby    certify    that 
..........  ,  whose  name  is  subscribed  to  the  foregoing 

certificate,  is  a  judge  of  this  court,  having  been  duly  com- 
missioned in  the  year  A.  D  .....  ,  that  I  am  acquainted  with 

his  handwriting,  and  that  his  above  signature  is  genuine. 

In  witness  whereof  I  have  hereunto  set  my  hand,  and 
affixed  the  seal  of  the  said  court  this  ............  day  of 

............  ,  A.  D.  19.... 


(Seal  here.) 

— Exhibit  C — Proof  of  Publication  of  Notice  of  Intended 
Application  in  the  "Legal  Intelligencer." 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  "]  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 

450 


ADMISSION  OF  ATTORNEYS. 


Att'y  of  other  State  (5  yr.'s  Standing),  Ap.  for  Final  Exam.        §7,  Ap. 

COMMONWEALTH  OF  PENNSYLVANIA, 
COUNTY  OF 

,  being  duly  sworn  [or  affirmed] 

according  to  law,  deposes  and  says  that  he  is  the 

of  the  "Legal  Intelligencer,"  and  that  a  notice,  of  which 
the  advertisement  hereunto  attached  is  a  copy,  was  pub- 
lished in  the  "Legal  Intelligencer,"  once  a  week,  for  four 
consecutive  weeks,  to  wit,  on  the  following  days 


(Here  insert  copy  of  notice.) 

Sworn  [or  affirmed]  to  and  sub- 
scribed before  me  this 

day  of ,  A.  D.  19. .. 


(Seal  here.)  Notary  Public. 

—Exhibit  D. — Proof  of  Publication  of  Notice  of  In- 
tended Application  in  Local  Periodical. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  "]  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 


COMMONWEALTH  OF  PENNSYLVANIA, 
COUNTY  OF 


>ss. 


being  duly  sworn  [or  affirmed] 

according  to  law,  deposes  and  says  that  he  is  the 


FORMS. 

§  7,  Ap.      Att'y  of  other  State  (5  yr.'s  Standing),  Ap.  for  Final  Exam. 

of , ,    a   law   periodical 

[or  newspaper  of  general  circulation],  published  at 
,  the  county  seat  of county,  Penn- 
sylvania, and  that  a  notice,  of  which  the  advertisement 
hereunto  attached  is  a  copy,  was  published  in  the  said  law 
periodical  [or  newpaper]  once  a  week  for  four  consecu- 
tive weeks,  to  wit,  on  the  following  days 


(Here  insert  copy  of  notice.) 

Sworn  [or  affirmed]  to  and  sub- 
scribed before  me  this 

day  of ,  A.  D.  19.. 


Notary  Public. 
(Seal  here.) 

—Exhibit  E. — Certificate  of  Good  Moral  Character. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  ^  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 


COMMONWEALTH  OF  PENNSYLVANIA, 
COUNTY  OF.  . 


>ss. 


and being  duly  sworn  [or  affirmed]  according 

452 


ADMISSION  OF  ATTORNEYS. 


Member  of  Common  Pleas.  §  9,  Ap. 

to  law,  depose  and  say  that  they  are  members  of  the  bar 

of  the  Court  of  Common  Pleas  of county,  in  the 

judicial  district  of  Pennsylvania,  wherein  the 

above-named  applicant  resides   [or  intends  to  practice] ; 

that  they  personally  know  the  said and  believe 

him  to  be  of  good  moral  character. 


Sworn  [or  affirmed]  to  and  sub- 1    Name 

scribed  before  me  this 

day  of A.  D.  19. .. 


Notary  Public. 

Name 


Address 
Name 
Address 


Address 
(Seal  here.) 


§8,  OMITTED  AS  OBSOLETE.    See  Chap.  2,  §23. 

§9,  FORM  H.— APPLICATION  BY  A  MEMBER  OF  A 
COURT  OF  COMMON  PLEAS  OF  PENNSYL- 
VANIA FOR  ADMISSION  TO  SUPREME  COURT. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  ^  For  Admission  to  the 

Bar  of  the  Supreme 
Court    of    Pennsyl- 
*  J      vania. 

453 


FORMS. 

§  9,  Ap.       Member  of  Common  Pleas,  Application  for  Admission. 


COMMONWEALTH  OF  PENNSYLVANIA 
COUNTY  OF.  . 


'  \ss. 


,  being  duly  sworn  [or  affirmed] 

according  to  law,  deposes  and  says : 

1.  That  he  is  the  applicant  above-named  and  the  person 
mentioned  in  the  annexed  exhibits  filed  with  this  applica- 
tion; that  he  is  a  citizen  of  the  United  States  and  of  the 

State  of  Pennsylvania,  and  resides  at  No street, 

in ,  county  of ,  in  the judicial 

district  of  said  state;  that  he  is  twenty-one  years  of  age 
and  upwards,  to  wit,  he  is years  old. 

2.  That  he  was  on  and  prior  to  the  first  Monday  of  Janu- 
ary, A.  D.  1903,  a  member  in  good  and  regular  standing  of 

the  bar  of  the  Court  of  Common  Pleas  of 

county,    in   the judicial   district   of   Pennsylvania; 

that  he  was  admitted  to  said  court  on  the day  of 

A.   D and  has   practiced   in  one  of  the 

courts  of  record  of  this  commonwealth  for  at  least  two 
years  prior  to  the  date  of  this  application,  to  wit,  in  the 

Court  of  Common   Pleas   of county,   from   the 

day  of A.  D to  the 

day  of ,  A.  D 

3.  That  prior  to  his  admission  to  the  bar  of  said  court 
he  served  a  regular  clerkship,  as  a  student  at  law,  in  the 

office  of in county,  in  the 

judicial  district  of  Pennsylvania,  for  a  term  of years. 

Sworn  [or  affirmed]  to  and  sub-  "1 

scribed  before  me  this >  _ 

day  of A.  D.  19. ..  j   tAPPhcant  s'Sns  here-] 


Notary  Public. 
(Seal  here.) 

454 


ADMISSION  OF  ATTORNEYS. 


Member  of  Common  Pleas.  §  9,  Ap. 

— Exhibit  A. — Certificate  of  a  Judge  of  a  Court  of  Com- 
mon Pleas. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  •>,  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 


COMMONWEALTH  OF  PENNSYLVANIA 
COUNTY  OF.  . 


'  \ss. 


I, ,  one  of  the  judges  of  the  Court  of  Com- 
mon Pleas  of county,  in  the judicial 

district  of  Pennsylvania,  hereby  certify  that the 

above-named  applicant  was,  on  and  prior  to  the  first  Mon- 
day of  January,  A.  D.  1903,  a  member  in  good  and  regu- 
lar standing  of  the  bar  of  this  court,  and  that  he  has  prac- 
ticed at  this  bar  for years. 

Witness  my  hand  and  the  seal  of  said  court  this 

day  of A.  D.  19. .. 


(Seal  here.) 

— Exhibit  B. — Certificate  of  Good  Moral  Character. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  -^  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 

455 


FORMS. 

§  10,  Ap.        Application  for  Final  Exam,  by  Att'y  from  Other  State. 


COMMONWEALTH  OF  PENNSYLVANIA 
COUNTY  OF.  . 


'   Iss. 


and being  duly  sworn   [or  affirmed]   according 

to  law,  depose  and  say  that  they  are  members  of  the  bar  of 

the  Court  of  Common  Pleas  of county,  in  the 

judicial  district  of  Pennsylvania,  wherein  the 

above-named  applicant  resides   [or,  intends  to  practice] ; 

that  they  personally  know  the  said and  believe 

him  to  be  of  good  moral  character. 


Sworn  [or  affirmed]  to  and  sub- 


Address 
Name  . . . 

Address 
Name 

Address 
• 
(Seal  here) 


scribed  before  me  this 

day  of A.  D.  19. .. 

Notary  Public. 


Name 


§10.  FORM  I.— APPLICATION  FOR  FINAL  EXAM- 
INATION BY  ATTORNEY  FROM  ANOTHER 
STATE. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  "1  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 

J      vania. 


456 


ADMISSION  OF  ATTORNEYS. 


Application  for  Final  Exam,  by  Att'y  from  Other  State.     §  10,  Ap. 


COMMONWEALTH  OF  PENNSYLVANIA. 
COUNTY  OF.  . 


being  duly  sworn  [or  affirmed] 

according  to  law,  deposes  and  says : 

1.  That  he  is  the  applicant  above-named  and  the  person 
mentioned  in  the  annexed  exhibits  filed  with  this  applica- 
tion; that  he  is  a  citizen  of  the  United  States  and  of  the 

State  of  Pennsylvania,  and  resides  at ,  in , 

county  of ,  in  the judicial  district  of 

said  state ;  that  he  is  twenty-one  years  of  age  and  upwards, 

to  wit,  he  is years  old,  and  was  born  at , 

state  of ,  on  the day  of , 

A.  D 

2.  That  he  is  a  member  in  good  and  regular  standing  of 

the  bar  of  a  court  of  record  of  the  state  of ,  from 

which  he  came,  to  wit,  of  the  court  of state  of 

,  having  been  admitted  to  the  bar  of  said  court 

on  the day  of ,  A.  D ,  as  will 

more  fully  appear  by  the  certificate  of  the  judge  of  said 
court,  hereunto  annexed,  marked  Exhibit  "A." 

3.  That  he  has  served  bona  fide  a  regular  clerkship  in 
the  office  of  a  practicing  attorney  in  the  state  of  Pennsyl- 
vania, to  wit,  in  the  office  of at in 

county  of ,  Pennsylvania,  for  a  period  of  at  least  one 

year,  to  wit,  from  the day  of ,  A.  D. 

19. .,  to  the day  of ,  A.  D.   19. .,  as 

will  more  fully  appear  from  the  annexed  attorney's  certifi- 
cate, marked  Exhibit  "B." 

4.  That  he  has  advertised  his  intention  to  apply  for  ex- 
amination and  admission  to  the  bar  of  the  Supreme  Court 
of  Pennsylvania,  in  accordance  with  the  provisions  of  Rule 

457 


FORMS. 
§  10,  Ap.     Application  for  Final  Exam,  by  Att'y  from  Other  State. 

9,  of  the  rules  regulating  admissions  to  the  bar  of  said 

court,  in  the  "Legal  Intelligencer"  and  in a  law 

periodical  [or  newspaper  of  general  circulation]  published 
in  the  county  seat  of county,  in  which  the  de- 
ponent resides,  once  a  week  for  four  consecutive  weeks 
immediately  preceding  the  date  of  filing  these  credentials, 
as  will  more  fully  appear  by  the  proofs  of  publication  of 
said  notice  hereunto  annexed,  marked  Exhibits  "C"  and 
"D." 

Sworn  [or  affirmed]  to  and  sub-  "1 

scribed  before  me  this }-' 

.  AT-.  (Applicant  sign  here.) 

day  of ,  A.  D.  19...  I 


Notary  Public. 
(Seal  here.) 

I  desire  to  present  myself  for  examination  in  the  city  of 


(Applicant  sign  here.) 

(In  the  foregoing  blank,  the  applicant  must  state  whether 
he  elects  to  be  examined  in  Philadelphia  or  Pittsburgh.) 

— Exhibit  A., — Certificate  of  a  Judge  of  a   Court  of 
Record. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  *|  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 

458 


ADMISSION  OF  ATTORNEYS. 


Application  for   Final   Exam,   by  Att;y  from  Other  State.    §  10,  Ap. 

State  of  ..............    i 

r*  t  ^ss. 

Count     of  ............ 


I,  ..........  ,  a  judge  of  one  of  the  courts  of  record  of 

the  state  of  ..........  ,  to  wit,  of  the  court  of  ...........  , 

do  hereby  certify  that  I  am  acquainted  with  ..........  ,  the 

above-named  applicant  for  admission  to  the  bar  of  the 
Supreme  Court  of  Pennsylvania,  and  that  the  said  ........ 

is  a  member  in  good  and  regular  standing  of  the  bar  of 
this  court,  having  been  admitted  on  the  ..........  day  of 

..........  ,  A.  D  ........ 

Witness  my  hand  and  the  seal  of  said  court  this  ........ 

day  of  ..........  ,  A.  D.  19.  .. 


(Seal  here.) 
State  of.. 


County  of, 

I, ,  clerk  of  the  court  of ,  state  of 

and  keeper  of  its  records  and  seal,  hereby  cer- 
tify that ,  whose  name  is  subscribed  to  the  fore- 
going certificate,  is  a  judge  of  this  court,  having  been  duly 

commissioned  in  the  year ;  that  I  am  acquainted  with 

his  handwriting,  and  that  his  above  signature  is  geunine. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and 

affixed  the  seal  of  the  said  court  this day  of 

,  A.  D.  19.... 


(Seal  here.) 

459 


FORMS. 

§  10,  Ap.    Application  for  Final  Exam,  by  Att'y  from  Other  State. 

— Exhibit  B.— Attorney's  Certificate. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  >,  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 

COMMONWEALTH  OF  PENNSYLVANIA, 
COUNTY  OF 

being  duly  sworn  [or  affirmed] 

according  to  law,  deposes  and  says  that  he  is  and  was  at 
the  dates  hereinafter  stated  a  member  of  the  bar  of  the 
Supreme  Court  of  Pennsylvania  and  of  the  Court  of  Com- 
mon Pleas  of county,  in  the judicial 

district  of  Pennsylvania,  with  his  office  at  No , 

city  of ,  county  of ,  Pennsylvania ; 

that the  above-named  applicant  served  bona 

fide  a  regular  clerkship  in  the  deponent's  law  office,  for  a 

period  of  one  year,  to  wit,  from  the day  of 

A.  D ,  to  the day  of ,  A.  D ; 

that  during  this  period  the  said  applicant  pursued  the  study 
of  the  law  with  diligence,  and  was  in  regular  attendance 

at  the  deponent's  law  office months  in  said  year. 

and  an  average  of hours  a  day  during  said  months. 

Sworn  [or  affirmed]  to  and  sub- 
scribed before  me  this 

day  of ,  A.  D.  19. 


Notary  Public. 
(Seal  here.) 

460 


ADMISSION  OF  ATTORNEYS. 


Application  for  Final  Exam,  by  Att'y  from  Other  State.    §  10,  Ap. 

— Exhibit  C. — Proof  of  Publication  of  Notice  of  In- 
tended Application  in  the  "Legal  Intelligencer." 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  ^  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 

COMMONWEALTH  OF  PENNSYLVANIA,  "i 

**.  C  C 

COUNTY  OF J 

....•• being  duly  sworn  [or  affirmed] 

according  to  law,  deposes  and  says  that  he  is  the 

of  the  "Legal  Intelligencer,"  and  that  a  notice,  of  which 
the  advertisement  hereunto  attached  is  a  copy,  was  pub- 
lished in  the  "Legal  Intelligencer,"  once  a  week,  for  four 
consecutive  weeks,  to  wit,  on  the  following  days : 

(Here  insert  copy  of  notice.) 

Sworn  [or  affirmed]  to  and  sub- 
scribed before  me  this 

day  of ,  A.  D.  19. 


Notary  Public. 
(Seal  here.) 

461 


FORMS. 

§  10,  Ap.     Application   for   Final   Exam,  by  Att'y  from  Other  State. 

— Exhibit  D. — Proof  of  Publication  of  Notice  of  In- 
tended Application  in  Local  Periodical. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  -^  For  Admission  to  the 

Bar  of  the  Supreme 
Court    of    Pennsyl- 
*  J       vania. 

COMMONWEALTH  OF  PENNSYLVANIA,  "i 
COUNTY  OF J  * 

being  duly  sworn  [or  affirmed] 

according  to  law,  deposes  and  says  that  he  is  the 

of ,  a  law  periodical   [or  newspaper  of  general 

circulation],  published  at ,  the  county  seat  of 

county,    Pennsylvania,    and   that   a   notice,    of 

which  the  advertisement  hereunto  attached  is  a  copy,  was 
published  in  the  said  law  periodical  [or  newspaper]  once 
a  week  for  four  consecutive  weeks,  to  wit,  on  the  follow- 
ing days :  


(Here  insert  copy  of  notice.) 

Sworn  [or  affirmed]  to  and  sub- 
scribed before  me  this 

day  of A.  D.  19. . 


Notary  Public. 
(Seal  here.) 

462 


ADMISSION  OF  ATTORNEYS. 


Application  for   Final  Exam,  by  Att'y  from  Other  State.       §  10,  Ap. 

—Exhibit  E. — Certificate  of  Good  Moral  Character. 

STATE  BOARD  OF  LAW  EXAMINERS 
COMMONWEALTH  OF  PENNSYLVANIA 

In  the  matter  of  the  application  of  ^  For  Admission  to  the 

Bar  of  the  Supreme 
Court  of  Pennsyl- 
vania. 

COMMONWEALTH  OF  PENNSYLVANIA,  "\ 
COUNTY  OF J ss" 


and being  duly  sworn  [or  affirmed]  according 

to  law,  depose  and  say  that  they  are  members  of  the  bar  of 

the  Court  of  Common  Pleas  of county,  in  the 

judicial  district  of  Pennsylvania,  wherein  the 

above-named  applicant  resides   [or  intends  to  practice] ; 

that  they  personally  know  the  said and  believe 

him  to  be  of  good  moral  character. 


Sworn  [or  affirmed]  to  and  sub-"1    Name 

scribed  before  me  this 

day  of A.  D.  19... 


Address 
Name   . 


Notary  Public. 


J 
(Seal  here.) 


463 


Address 


Name 
Address 


FORMS. 

§  11,  Ap.       Certificate  of  State  Board  Recommending  Admission. 

§11.— CERTIFICATE  OF  STATE   BOARD    RECOM- 
MENDING ADMISSION  TO  THE  BAR. 

COMMONWEALTH  OF  PENNSYLVANIA 
STATE  BOARD  OF  LAW  EXAMINERS 

No. 


To  the  Honorable,  the  Justices  of  the  Supreme  Court  of 
Pennsylvania : 

The  State  Board  of  Law  Examiners  hereby  certifies  that 

of county,  has  been  examined 

by  said  board  for  admission  to  the  bar  of  the  Supreme 
Court  of  Pennsylvania;  that  he  has  satisfactorily  passed 
the  examination  and  has  complied  with  the  conditions  pre- 
scribed by  the  rules  of  your  honorable  court. 

The  board  therefore  recommends  that  he  be  admitted  to 
the  bar  of  the  Supreme  Court  of  Pennsylvania. 

Given  at this day  of A.  D. 

19... 

(Seal) 

State  Board  of  Law  Examiners, 


Chairman. 
Attest: 


Secretary. 
464 


ADMISSION  OF  ATTORNEYS. 


Praecipe  for  Admission.  §§12,  13,  Ap. 


§12.— PRAECIPE  FOR  ADMISSION  TO  SUPREME 
COURT  ON  RECOMMENDATION  OF  STATE 
BOARD. 

IN  THE  SUPREME  COURT  OF  PENNSYLVANIA 
IN  AND  FOR  THE DISTRICT 

In  the  matter  of  the  application  of  1  For  Admission  to  the 

Supreme    Court    of 


J 


Pennsylvania. 


To  the  Honorable,  the  Judges  of  the  Superior  Court  of 
Pennsylvania : 

And  now,  to  wit,   19. .,  the  State  Board  of 

Law    Examiners    having    certified    to    this    court    that 

,  Esq.,  of county,  has  complied 

with  all  the  conditions  prescribed  by  the  rules  of  your 
honorable  court,  and  further,  the  said  board  having  recom- 
mended that  he  be  admitted  to  the  bar  of  the  Supreme 
Court  of  Pennsylvania,  I  hereby  move  for  his  admission 
to  practice  as  an  attorney  and  counselor  in  your  honor- 
able court. 


§13.— PRAECIPE  FOR  ADMISSION  TO  SUPERIOR 
COURT  WHERE  APPLICANT  WAS  ADMITTED 
TO  PRACTICE  IN  COMMON  PLEAS  ON  OR  BE- 
FORE MAY  22, 1903. 

IN  THE  SUPERIOR  COURT  OF  PENNSYLVANIA 
SITTING  AT 

In  the  matter  of  the  application  of  "1  For  Admission  to  the 

!•     Superior    Court    of 
,  J       Pennsylvania. 

465 
30 


FORMS. 

13,  14,  Ap.  Praecipe  for  Admission. 


To  the  Honorable,  the  Judges  of  the  Superior  Court  of 
Pennsylvania: 

And  now,  to  wit,   ,  19.  .,  I  hereby  move  for 

the  admission  of ,  Esq.,  a  member  of  the  bar 

in  good  and  regular  standing  of  the  Court  of  Common 

Pleas  of county,  to  practice  as  an  attorney  and 

counselor  in  your  honorable  court,  and  I  certify  that  the 
said  applicant  was  admitted  to  practice  in  said  Court  of 
Common  Pleas  on  or  before  May  22,  1903,  and  at  the  pres- 
ent time  has  practiced  therein  for  two  years,  and  is  of 
good  moral  character. 


•14.— PRAECIPE  FOR  ADMISSION  TO  SUPERIOR 
COURT  WHERE  APPLICANT  HAS  BEEN  AD- 
MITTED TO  PRACTICE  IN  SUPREME  COURT. 

IN  THE  SUPERIOR  COURT  OF  PENNSYLVANIA 
SITTING  AT 

In  the  matter  of  the  application  of  -^  For  Admission  to  the 

Bar  of  the  Superior 
Court  of  Pennsyl- 
vania. 

To  the  Honorable,  the  Judges  of  the  Superior  Court  of 
Pennsylvania : 

And  now,  to  wit, ,  19. .,  I  hereby  move  for 

the  admission  of ,  Esq.,  a  member  of  the  bar 

in  good  and  regular  standing  of  the  Court  of  Common 

466 


ADMISSION  OF  ATTORNEYS. 


Praecipe  for  Admission.  §  15,  Ap. 


Pleas  of county,  to  practice  as  an  attorney  and 

counselor  in  your  honorable  court,  and  I  certify  that  the 
said  applicant  was  admitted  to  practice  at  the  bar  of  the 

Supreme  Court  of  the  commonwealth  on  the 

day  of A.  D.  19. .,  and  is  of  good  moral  charac- 
ter. 


§15.— PRAECIPE  FOR  ADMISSION  TO  SUPERIOR 
COURT  ON  RECOMMENDATION  OF  STATE 
BOARD. 

IN  THE  SUPERIOR  COURT  OF  PENNSYLVANIA 
SITTING  AT 

In  the  matter  of  the  application  of  "I  For  Admission  to  the 

Superior    Court    of 
J      Pennsylvania. 

To  the  Honorable,  the  Justices  of  the  Supreme  Court  of 
Pennsylvania : 

And  now,  to  wit, ,  19.  . . ,  the  State  Board 

of  Law  Examiners  having  certified  to  the  Supreme  Court 

that    ,  Esq.,  of county,  has  complied 

with  all  the  conditions  prescribed  by  the  rules  of  the  Su- 
preme Court  and  further,  the  said  board,  having  recom- 
mended that  he  be  admitted  to  the  bar  of  the  Supreme 
Court  of  Pennsylvania,  I  hereby  certify  that  he  is  of  good 
moral  character,  and  move  for  his  admission  to  practice 
as  an  attornev  and  counselor  in  vour  honorable  court. 


467 


FORMS. 

§§  16,  17,  Ap.  Oath — Certificate  of  Admission. 

§16.— OATH  OF  ATTORNEY  ON  ADMISSION  TO 
BAR. 

You  do  swear  [or  affirm]  that  you  will  support  the  con- 
stitution of  the  United  States  and  the  constitution  of  this 
commonwealth,  and  that  you  will  behave  yourself  in  the 
office  of  attorney  within  this  court,  according  to  the  best 
of  your  learning  and  ability,  and  with  all  good  fidelity,  as 
well  to  the  court  as  to  the  client;  that  you  will  use  no  false- 
hood, nor  delay  any  person's  cause  for  lucre  or  malice: 
Act  April  14,  1834,  §69,  P.  L.  354,  Purd.  372. 

(See  i  Purd.  372.) 

§17.— CERTIFICATE  OF  ADMISSION  TO  SUPREME 
COURT. 

IN  THE  SUPREME  COURT  OF  PENNSYLVANIA 

Be  it  Remembered,  That,  at  a  Supreme  Court  of  Penn- 
sylvania, holden  at ,  in  and  for  the 

district,  before  the  Honorable ,  Doctor  of  Laws, 

Chief  Justice,  and  his  Associate  Justices,  on  the 

day  of ,  in  the  year  of  our  Lord  one  thousand 

nine  hundred  and ,  ,  Esq.,  was,  on 

motion  of Esq.,  duly  sworn  [or  affirmed]  and 

admitted  to  practice  as  an  attorney  and  counsellor  of  the 
said  Supreme  Court  of  Pennsylvania. 

Certified  from  the  records  under  my  hand  and  the 

official  seal  of  the  said  Supreme  Court,  at ,  this 

day  of ,  A.  D.  one  thousand  nine  hun- 
dred and.  . 


Prothonotary. 
(Seal  of  court  here.) 

468 


ADMISSION  OF  ATTORNEYS. 


Certificate  of  Admission.  §§  18,  19,  Ap. 

§18.— CERTIFICATE  OF  ADMISSION  TO  SUPER- 
IOR COURT. 

IN  THE  SUPERIOR  COURT  OF  PENNSYLVANIA 

Be  it  Remembered,  That,  at  a  Superior  Court  of  Penn- 
sylvania, sitting  at ,  before  the  Hon , 

Doctor  of  Laws,  President  Judge,  and  his  associate  Judges 

of  the  same  court,  on  the   day  of in 

the  year  of   our   Lord  one   thousand   nine   hundred   and 

on  motion  of ,  Esq 

Esq.,  was  duly  sworn  [or  affirmed]  and  admitted  to  prac- 
tice as  attorney  and  counsellor  of  the  said  Superior  Court 
of  Pennsylvania. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and 

affixed  the  seal  of  the  said  Superior  Court,  at , 

this day  of ,  A.  D.  one  thousand 

nine  hundred  and 

(Seal  of  court  here.) 

Prothonotary. 


§19.— CERTIFICATE     RECOMMENDING     ADMIS- 
SION TO  BAR  OF  ANOTHER  STATE. 

IN  THE  SUPREME  COURT  OF  PENNSYLVANIA 
IN  AND  FOR  THE DISTRICT 

In  the  matter  of  the  application  of  "1  For  Admission  to  the 

Bar  of  the  State  of 


469 


FORMS. 

§  19,  Ap.        Recommending  Admission  to  Bar  of  Other  State. 

I, ,  Chief  Justice  of  the  Supreme  Court  of 

Pennsylvania,  do  hereby  certify  that  the  Supreme  Court 
of  Pennsylvania  is  the  highest  court  of  law  within  the 

state  of  Pennsylvania;  and  that  on  the day  of 

in  the  year  of  our  Lord  one  thousand  nine  hun- 
dred and ,  Esq.,  was  duly  admitted 

to  practice  as  an  attorney  and  counsellor  at  law  in  the  said 
Supreme  Court  of  Pennsylvania. 

I  further  certify  that  the  said ,  Esq.,  has  been 

in  actual  practice  in  the  said  Supreme  Court  of  Pennsyl- 
vania for years  last  past  and  upwards,  and  that 

he  is  in  good  standing  and  of  good  moral  character. 

I  hereby  recommend  him  for  admission  to  the  bar  of  the 
state  of. , 


Chief  Justice. 

Commonwealth    of    Penn- 
sylvania, County  of 


Penn— v 

Lw. 


I,  ,  prothonotary  of  the  Supreme  Court  of 

Pennsylvania,  for  the district,  do  hereby  certify 

that  Hon ,  whose  genuine  signature  is  affixed 

to  and  who  has  executed  the  foregoing  certificate,  was,  at 
the  time  of  the  signing  thereof,  and  now  is  (or  as  the  case 
may  be),  Chief  Justice  of  the  said  Supreme  Court  of  Penn- 
sylvania duly  commissioned  and  qualified  according  to  law. 

Witness  my  hand  and  seal  of  the  said  court  hereto  affixed 
at ,  this day  of A.  D.  19 ... 


Prothonotarv. 


470 


APPENDIX. 


Supreme  Court  Districts. 


§  20,  Ap. 


§20.— SUPREME   COURT    DISTRICTS    BY    COUN- 
TIES. 

EASTERN  DISTRICT. 


Adams 

Erie 

Northampton 

Bedford 

Fayette 

Northumberland 

Berks 

Franklin 

Philadelphia 

Blair 

Huntingdon 

Perry 

Bradford 

Juniata 

Pike 

Bucks 

Lackawanna 

Potter 

Cameron 

Lancaster 

Schuylkill 

Carbon 

Lebanon 

Snyder 

Chester 

Lehigh 

Sullivan 

Centre 

Luzerne 

Susquehanna 

Clearfield 

Lycoming 

Tioga 

Clinton 

McKean 

Union 

Columbia 

Mifflin 

Warren 

Crawford 

Monroe 

Wayne 

Cumberland 

Montgomery 

Wyoming 

Delaware 

Montour 

York 

Elk 

Dauphin 


Allegheny 

Armstrong 

Beaver 

Butler 

Cambria 

Clarion 


MIDDLE  DISTRICT. 

Fulton 

WESTERN  DISTRICT. 


Forrest 

Greene 

Indiana 

Jefferson 

Lawrence 


Mercer 

Somerset 

Venango 

Washington 

Westmoreland 


47i 


APPENDIX. 

§  21,  Ap.  Supreme  Court  Terms  and  Return  Days. 

§21.  SUPREME  COURT  TERMS  AND  RETURN 

DAYS. 

EASTERN  DISTRICT. 

The  first,  Second,  third  and  fourth  Mondays  of  January 
for  the  county  of  Philadelphia. 

The  fourth  Monday  following  the  first  Monday  of  Jan- 
uary in  each  year  for  the  counties  of  Lehigh  and  Mont- 
gomery. 

The  fifth  Monday  following  the  first  Monday  of  January 
for  the  counties  of  Chester,  Delaware  and  Bucks. 

The  sixth  Monday  following  the  first  Monday  of  January 
for  the  counties  of  Schuylkill,  Lebanon  and  Lycoming. 

The  seventh  Monday  following  the  first  Monday  in 
January  for  the  counties  of  Lackawanna,  Wayne,  Pike  and 
Wyoming. 

The  eighth  Monday  following  the  first  Monday  in  Jan- 
uary for  the  counties  of  Berks,  Montour  and  Adams. 

The  ninth  Monday  following  the  first  Monday  in  January 
for  the  counties  of  Northampton,  Carbon,  Monroe  and 
Franklin. 

The  tenth  Monday  following  the  first  Monday  in  Janu- 
ary for  the  counties  of  Bradford,  Clinton,  Cameron,  Sulli- 
van and  Susquehanna. 

The  eleventh,  twelfth  and  thirteenth  Mondays  following 
the  first  Monday  of  January  for  the  county  of  Philadelphia. 

The  fourteenth  Monday  following  the  first  Monday  in 
January  for  the  counties  of  Luzerne  and  Columbia. 

The  fifteenth  Monday  following  the  first  Monday  in  Jan- 

472 


APPENDIX. 
Supreme  Court  Terms  and  Return  Days.  §  21,  Ap. 

uary  for  the  counties  of  Blair,  Centre,  Clearfield  and  Hunt- 
ingdon. 

The  sixteenth  Monday  following  the  first  Monday  in 
January  for  the  counties  of  Crawford,  Erie  and  Cumber- 
land. 

The  seventeenth  Monday  following  the  first  Monday  in 
January  for  the  counties  of  Warren,  McKean,  Tioga,  Pot- 
ter and  Elk. 

The  eighteenth  Monday  following  the  first  Monday  in 
January  for  the  counties  of  Bedford,  Fayette,  Union,  Sny- 
der,  Northumberland,  Juniata,  Mifflin  and  Perry. 

The  nineteenth  Monday  following  the  first  Monday  in 
January  for  the  counties  of  Lancaster  and  York. 

MIDDLE  DISTRICT. 

The  twentieth  Monday  after  the  first  Monday  of  January 
for  i.he  counties  of  Dauphin  and  Fulton. 

WESTERN  DISTRICT. 

The  first  Monday  in  October  for  the  counties  of  Arm- 
strong, Cambria,  Clarion,  Forest,  Jefferson,  Mercer,  Som- 
erset, Venango  and  Westmoreland. 

The  second  Monday  in  October  for  the  counties  of 
Beaver,  Butler,  Greene,  Indiana,  Lawrence  and  Washing- 
ton. 

The  third  Monday  in  October,  and  continuing  until  the 
list  has  been  heard,  for  the  county  of  Allegheny. 

Return  Day  for  Murder  Cases.  First  Monday  of  each 
month  shall  be  special  return  day  in  each  district.  Fifth 
Monday  after  issuing  writ  shall  be  assigned  for  argument 
thereof.  Supreme  Court  Rule  n. 

473 


APPENDIX. 

§  22,  Ap.  Superior  Court  Terms  and  Return  Days. 

§22.— SUPERIOR  COURT  TERMS  AND  RETURN 
DAYS. 

Rule  i.  The  judges  of  the  Superior  Court  will  annually 
hold  terms  of  the  said  court,  and  appeals  shall  be  return- 
able, at  the  following  times  and  places,  except  as  provided 
in  Rule  7.  (See  bottom  of  next  page,  "Criminal  Cases.") 

First— At  Philadelphia : 

The  first  Monday  of  October,  for  the  County  of  Phila- 
delphia. 

The  second  Monday  of  October,  for  the  County  of  Phila- 
delphia. 

The  third  Monday  of  October,  for  the  Counties  of  Phila- 
delphia, Franklin,  Fulton  and  Wyoming. 

The  fourth  Monday  of  October,  for  the  Counties  of  Bed- 
ford, Blair,  Centre,  Clearfield,  Huntingdon,  Lebanon,  Mc- 
Kean,  Northumberland  and  Potter. 

The  second  Monday  of  November,  for  the  Counties  of 
Berks  and  Lancaster. 

The  third  Monday  of  November,  for  the  Counties  of 
Bradford,  Bucks,  Chester  and  Delaware. 

The  first  Monday  of  December,  for  the  Counties  of  Le- 
high,  Monroe,  Montgomery,  Northampton  and  Schuylkill. 

The  second  Monday  of  December,  for  the  Counties  of 
Philadelphia  and  Carbon. 

Second — At  Williamsport : 

The  first  Tuesday  after  the  last  Monday  of  February,  for 
the  Counties  of  Cameron,  Clinton,  Elk,  Lycoming,  Sulli- 
van, Tioga  and  Union. 

474 


APPENDIX. 

Superior  Court  Terms  and  Return  Day*.  §  22,  Ap. 

Third— At  Scranton: 

The  first  Monday  of  March  for  the  Counties  of  Colum- 
bia, Lackawanna,  Luzerne,  Montour,  Pike,  Susquehanna 
and  Wayne. 

Fourth — At  Harrisburg: 

The  second  Monday  of  March,  for  the  Counties  of 
Adams,  Cumberland,  Dauphin,  Juniata,  Mifflin,  Perry, 
Snyder  and  York. 

Fifth— At  Pittsburgh: 

The  second  Monday  of  April,  for  the  Counties  of  Alle- 
gheny, Crawford,  Erie,  Forest,  Venango  and  Warren. 

The  third  Monday  of  April,  for  the  Counties  of  Fayette, 
Greene,  Washington  and  Westmoreland. 

The  fourth  Monday  of  April  for  the  County  of  Alle- 
gheny. 

The  first  Monday  of  May,  for  the  Counties  of  Cambria, 
Clarion,  Indiana,  Jefferson,  Somerset  and  Allegheny. 

The  second  Monday  of  May,  for  the  Counties  of  Arm- 
strong, Beaver,  Butler,  Lawrence  and  Mercer. 

Criminal  Cases.  The  first  Monday  of  each  month  shall 
be  a  special  return  day  for  all  appeals  in  criminal  cases. 
The  fifth  Monday  after  issuing  the  writ  shall  be  assigned 
for  the  argument  thereof,  provided  the  court  shall  then  be 
in  session.  If  then  in  session  in  a  place  other  than  that  in 
which  the  writ  issued,  the  prothonotary  issuing  such  writ 
shall  certify  the  record  to  the  place  in  which  the  court  shall 
be  sitting.  If  the  court  shall  not  be  in  session  at  that  time, 
the  case  shall  be  certified  to  the  place  in  which  the  next 
term  shall  be  held.  Superior  Court  Rule  7. 

475 


APPENDIX. 

§  23,  Ap.  Petition   for   Quo    Warranto. 

§23.    PETITION  FOE  QUO  WARRANTO. 

IN  THE  SUPEEME  COURT  OF  PENNSYLVANIA 
FOR  THE DISTRICT. 

Commonwealth  of  Pennsylvania,  ex  rel.  ^ 

Attorney    General,      Term,  19 . 

v.  (No.  . 


And  now,  to  wit, 19 . .,  comes 

,  the  Attorney  General  of  the  Commonwealth  of  Pennsyl- 
vania, and  files  this  his  suggestion,  and  gives  the  court  to  under- 
stand and  be  informed: 

First.  That,  at  an  election  regularly  held  on  the day  of 

,  19. ., was  elected  to  the  office  of 

[Set  out  in  full  all  facts  and  the  reasons  for  asking  for 

writ.  The  original  jurisdiction  of  the  Supreme  Court  extends  only  to 
officers  whose  jurisdiction  extends  over  the  state.] 

Whereupon  the  said  Attorney  General  suggests  that  the  said  court 

do  award  a  writ  of  Quo  Warranto,  directed  to  the  sheriff  of 

county,  commanding  him  to  summon  the  said ,  that  he  be 

and  appear  before  the  said  court  on  a  day  certain,  to  show  by  what 
authority  he  exercises  the  rights  and  duties  [etc.]. 


Attorney  General. 

24.    AFFIDAVIT  TO  PETITION  FOR  QUO  WARRANTO. 

Commonwealth  of  Pennsylvania,  ex  rel. 

Attorney    General,      Term,  19 ... 

NO. 


State    of    Pennsylvania  "I 
County  of    JSS" 

,  being  duly  sworn    [or  affirmed]    according 

to  law,  deposes  and  says: 

476 


FORMS. 

Petition   for   Mandamus.  §  25,  Ap. 


That  he  is  a  citizen  of  the  State  of  Pennsylvania  and  a  property 
holder  therein,  and  is  largely  and  pecuniarily  interested  in  the  pros- 
perity of  said  state. 

That  [set  out  in  full  facts,  showing  grounds  for  granting  writ.] 


Sworn    [or  affirmed]    to  and   subscribed 

before  me  this day  of , 

19.. 


[Seal  here.]  Notary  Public. 

§25.    PETITION  FOR  MANDAMUS. 

IN  THE  SUPREME  COURT  OF  PENNSYLVANIA 

FOR  THE DISTRICT. 

Commonwealth  of  Pennsylvania,  ex  rel. 


Term,  19... 

v.  I  No.  . 


To  the  Honorable,  the  Justices  of  said  Court : 

The  petition  of respectfully  represents : 

[Set  forth  clearly  facts  showing  a  prima  facie  right  to  mandamus. 
The  Supreme  Court  has  original  jurisdiction  to  issue  writ  only  to 
courts  of  inferior  jurisdiction.] 

Your  petitioner  therefore  prays  your  honorable  court  to  issue  a 

writ  of  mandamus  directed  to  the  said  Honorable , 

Judge  of  the  said  court  of of  the  county  of 

,  commanding  him  [State  specifically  the  acts  desired  to 

be  performed] . 

And  your  petitioner  will  ever  pray,  etc. 

[Add  affidavit  of  truth,  as  under  Appendix,  §24.] 

477 


APPENDIX. 
§  26,  Ap.  Petition  for  Habeas  Corpus. 

§26.  PETITION  FOR  HABEAS  CORPUS. 

IN  THE  SUPREME  COURT  OF  PENNSYLVANIA 
FOR  THE DISTRICT. 

Commonwealth  of  Pennsylvania,  ex  rel.  "| 

Term,  19. 

v.  [  No.  . 


To  the  Honorable,  the  Justices  of  said  Court: 

The  petition  of respectfully  represents : 

[Set  forth  the  reasons  in  full.] 

Your  petitioner  therefore  humbly  prays  this  Honorable  Court  to 

issue  a  writ  of  Habeas  Corpus  directed  to ,  for 

his  relief  agreeably  to  the  Act  of  Assembly  in  such  case  made  and 
provided.    And  he  will  ever  pray,  etc. 


State    of   Pennsylvania 
County  of    

,  the  above  petitioner,  having  been  duly  sworn  [or  af- 
firmed] according  to  law,  deposes  and  says  that  the  statements  made 
in  the  foregoing  petition,  so  far  as  they  are  based  on  his  own  knowl- 
edge, are  true,  and  so  far  as  based  on  information  received,  are  true 
to  the  best  of  his  knowledge  and  belief. 


Sworn    [or  affirmed]    to   and   subscribed 

before  me  this   day  of   , 

19.. 


[Seal  here.]  Notary  Public. 

478 


FORMS. 
Allow.  Ap.  from  Super,  to  Supreme  Ct. — Objections.      §§27,  28 

§27.    PETITION    FOR    SPECIAL    ALLOWANCE    OF    APPEAL 
FROM  SUPERIOR  TO  SUPREME  COURT. 

IN  THE  SUPREME  COURT  OF  PENNSYLVANIA 
FOR  THE  .  .  DISTRICT. 


,     ~> Term,  19... 

v. 


No. 


Petition  for  appeal  by from  the  judgment  of 

the  Superior  Court, Term,  19 . . ,  No 

To  the  Honorable,  the  Justices  of  said  Supreme  Court : 

The  petition  of respectfully  represents : 

That  he  is  the in  the  above  case  which  originated  in 

the  Court  of  Common  Pleas, of county, 

Term,  19. .,  No ,  from  which  court  an  appeal  was  taken  to  the 

Superior  Court  of  Pennsylvania,  to  Term,  19 . . ,  No. 


[State  here  the  reasons  for  asking  for  special  allowance,  whether 
because  of  constitutional  question  involved,  special  importance  of 
questions,  etc.,  stating  clearly  the  nature  of  the  questions  involved 
and  how  they  arose,  and  also  quote  the  opinion  of  the  Superior  Court 
verbatim.  See  §121,  above.] 

Your  petitioner  therefore  prays  that  he  be  allowed  to  appeal  from 
the  said  judgment  of  the  Superior  Court  to  the  Supreme  Court  of 
Pennsylvania. 

And  he  will  ever  pray,  etc. 


OBJECTION  BY  APPELLEE   TO  JURISDICTION   OF   SU- 
PERIOR COURT. 


^    Superior  Court  of  Pennsylvania  for  the 

v.  I  District    Term, 

j   19..,  No 


And  now,  to  wit, ,  19 . . ,  the  appellee,  by  his 

attorney objects  to  the  jurisdiction  of  the  Su- 

479 


APPENDIX. 
§  29  Objection — Jurisdiction — Case   to   Supreme   Court 

perior  Court  in  the  above  case,  it  appearing  from  the  record  that  the 
amount  involved  exceeds  the  sum  of  $1500  [or  as  the  case  may  be], 

and  moves  the  court  to  certify  the  appeal  of 

to  the  Supreme  Court  of  Pennsylvania,  according  to  the  Act  of  As- 
sembly in  such  case  made  and  provided. 


Attorney  for  Appellee. 

529.    PETITION  OF  APPELLANT  TO  CERTIFY  CASE  TO   SU- 
PREME COURT. 

IN  THE  SUPERIOR  COURT  OF  PENNSYLVANIA 
SITTING  AT  . 


Appellant.     Term,  19. .. 

v-  i  No.  . 


To  the  Honorable,  the  Judges  of  said  Court : 

The  petition  of ,  appellant  in  the  above  case, 

respectfully  represents : 

That  your  petitioner  appealed  from  the  judgment  of  the  Court  of 

Common  Pleas  of  county,  Term,  19 . . ,  No. 

,  in  an  action  brought  by  him  for  the  recovery  of  [state 

cause  of  action  and  questions  involved.] 

That  the  amount  really  in  controversy  in  said  action  exceeds  the 
sum  of  $1500,  but  that  appeal  was,  through  mistake  of  fact,  taken  to 
this  court  instead  of  the  Supreme  Court  of  Pennsylvania,  to  which 
court,  by  reason  of  the  amount  involved,  said  appeal  should  have  been 
taken. 

Your  petitioner  therefore  prays  that  said  appeal  be  not  quashed  but 
that  it  be  certified,  at  your  petitioner 's  cost,  to  the  Supreme  Court  for 
hearing  and  decision,  according  to  the  provisions  of  the  Act  of  As- 
sembly in  such  case  made  and  provided. 

And  your  petitioner  will  ever  pray,  etc. 


Attorney  for  Petitioner. 
480 


FORMS. 
Petition  for  Supersedeas — Bill  of  Exceptions.  §§  30,  31,  Ap. 

[Add  affidavit  as  to  truth  of  averments.  Attach  to  above  petition  a 
copy  of  such  part  of  the  record  as  is  necessary  to  show  the  jurisdic- 
tional  facts.] 

§30.    PETITION   FOR   SPECIAL   ALLOWANCE    OF    SUPERSE- 
DEAS. 

IN  THE COURT  OF  PENNSYLVANIA 

SITTING  AT  . 


Appellant    I   Term,  19... 

v.  [No.  . 


To  the  Honorable,  the  Justices  of  said  court: 

The  petition  of  ....................  respectfully  represents  : 

That  he  is  the  appellant  in  the  above  cause,  having  appealed  from 
the  judgment  of  the  Court  of  Common  Pleas  for  the  county  of 
..........  ,  ..........  Term,  19.  .,  No  ............ 

That  on  the  trial  of  the  said  cause  in  said  court  [Set  out  the  facts 
and  the  questions  involved  in  the  lower  court,  the  opinion  filed,  if  any, 
and  state  clearly  the  grounds  on  which  a  special  supersedeas  is  asked.] 

Your  petitioner  therefore  prays  your  Honorable  Court  to  grant  a 
writ  directing  that  all  further  proceedings  in  said  cause  be  stayed 
pending  the  determination  of  his  said  appeal.  And  he  will  ever  pray, 
etc. 

[Add  affidavit  of  truth.] 

§31.    BILL  OF  EXCEPTIONS. 


1    ..........  Term,  19..,  No  .......... 

I 

f  Common  Pleas,    ............    County. 


Bill  of  Exceptions. 

Be  it  Remembered,  That  in  the  said  term  of   ,  19.., 

came  the  said  plaintiff  into  the  said  court  and  impleaded  the  said 

481 


APPENDIX. 
§  31,  Ap.  Bill  of  Exceptions. 


defendant  in  a  certain  plea  of in  which  this  said  plain- 
tiff declared  (prout  narr)  and  the  said  defendant  pleaded  (prout 
pleas)  and  thereupon  issue  was  joined  between  them. 

And  afterwards,  to  wit,  at  a  session  of  said  court,  held  at  the 

county  aforesaid  before  the  Honorable ,  Judge  of  the  said 

court,  the day  of 19 . . ,  the  aforesaid  issue  be- 
tween the  said  parties  came  to  be  tried  by  a  jury  of  the  said  county 
for  that  purpose  duly  impanelled  (prout  list  of  jurors)  at  which  day 
came  as  well  the  said  plaintiff  as  the  said  defendant  by  their  respec- 
tive attorneys,  and  the  jurors  of  the  jury  aforesaid,  impanelled  to  try 
the  said  issue,  being  also  called,  came  and  were  then  and  there  in  due 
manner  chosen  and  sworn  or  affirmed  to  try  the  said  issue,  and  upon 
the  trial  the  counsel  for  the  said  plaintiff  and  the  counsel  for  the  said 
defendant  offered  respectively  the  following  testimony,  to  wit:  (see 
testimony  annexed)  and  at  the  conclusion  of  said  testimony  the  court 
charged  the  jury  as  follows,  to  wit  (see  charge  annexed) : 

[Add  here  a  copy  of  the  transcript  of  the  testimony  and  charge 
secured  from  the  court  stenographer.] 

And  thereupon  counsel  for  the  said did  then  and  there 

except  to  the  rulings  of  the  said  court  on  questions  of  evidence  pro- 
pounded during  the  course  of  the  trial,  as  appears  by  the  forego- 
ing transcript  of  the  evidence,  and  requested  that  the  seal  of  the 
judge  aforesaid  should  be  put  thereto,  which  was  done  according  to 
the  form  of  the  statute  in  such  case  made  and  provided. 

And  thereupon  the  counsel  for  the  said  did  then  and 

there  except  to  the  aforesaid  charge  and  opinion  of  the  said  court, 
as  appears  by  the  foregoing  transcript  of  the  said  charge,  and  inas- 
much as  the  said  charge  and  opinion  so  excepted  to  do  not  appear  on 

the  record,  the  said  counsel  for  the  said did  then  and  there 

tender  this  bill  of  exceptions  to  the  rulings  and  the  charge  of  the  said 
court,  and  requested  the  seal  of  the  judge  aforesaid  should  be  put  to 
the  same  according  to  the  form  of  the  statute  in  such  case  made  and 
provided.  And  thereupon,  the  aforesaid  judge  at  the  request  of  the 
said  counsel  for  the ,  did  put  his  seal  to  this  Bill  of  Ex- 
ceptions, this day  of 19. . . 


[Signature  of  Judge.]   

[Seal  here.] 

[See  Act  May  11, 1911,  P.  L.  279,  §162,  above;  see  also  §161,  above.] 

482 


FORMS. 

Petition  for  Sealing  Bill  of  Exceptions  §  32,  Ap. 

§32.    PETITION  TO  COMPEL  SEALING  OF  BILL  OF  EXCEP- 
TIONS. 

IN  THE COURT  OF  PENNSYLVANIA 

SITTING  AT 

Petition  of  for  order  to  "\ Term,  19. .. 

compel  sealing  of  Bill  of  Exceptions.          J  No 

To  the  Honorable,  the  Justices  [or  Judges]  of  the  

Court  of  Pennsylvania: 

The  petition  of respectfully  represents : 

That  on  the  trial  of  an  issue  in  the  Court  of  Common  Pleas 

of  county,  wherein  your  petitioner  was  plaintiff  and 

was  defendant,  before  the  Honorable ,  one 

of  the  judges  of  the  said  court,  and  a  jury  duly  impanelled  therein, 

on  the  day  of ,  19 . . ,  the  said  defendant  did 

offer  as  evidence  in  the  said  case  the  testimony  set  forth  in  "Exhibit 
A"  attached  hereto.  And  the  counsel  for  your  petitioner  did  then 
and  there  except  to  such  testimony  as  is  specifically  set  forth  in  the 
said  exhibit  accompanying  this  petition,  and  the  said  judge  did  then 
and  there  note  exceptions  thereto. 

Your  petitioner  further  alleges  that  afterwards,  in  accordance  with 
the  rules  of  practice  in  said  Court  of  Common  Pleas,  his  counsel  pre- 
sented a  formal  bill  of  exceptions  to  the  said  Judge ,  with 

the  exceptions  as  made  at  the  time  of  the  trial,  and  requested  the  said 
judge  to  affix  his  seal  thereto,  which  he  then  and  there  refused  to  do. 

That  the  refusal  of  the  said  Judge to  affix  his  seal  to 

the  said  bill  of  exceptions  has  grievously  injured  your  petitioner  and 
is  a  violation  of  the  statute  in  such  case  made  and  provided. 

Your  petitioner  therefore  prays  that  a  writ  be  awarded  out  of  this 
court,  conformably  to  the  statute  in  such  case  made  and  provided,  di- 
rected to  the  said  Judge ,  commanding  him  to  appear  at  a 

certain  day  either  to  confess  or  deny  the  matters  herein  set  forth; 
and,  if  he  confess  the  same,  to  affix  his  seal  to  said  bill  of  exceptions. 

And  your  petitioner  will  ever  pray,  etc. 

[Add  affidavit  as  to  truth  of  averments.  Attach  to  the  above  peti- 
tion the  exhibits  referred  to  therein.] 

[See  §161,  and  note  (8) ;  see  also  §49,  Ap.,  for  recent  practice  in 
Supreme  Court  by  decree  instead  of  writ  in  next  section.] 

483 


APPENDIX. 
§  33,  Ap.  Writ  Directing  Exceptions  to  be  Sealed. 

§33.    WRIT  DIRECTING  EXCEPTIONS  TO  BE  SEALED. 

The  Commonwealth  of  Pennsylvania  to ,  greeting : 

Whereas,  by  statute,  among  other  things,  it  is  provided  that  in  any 
suit  before  the  judges,  where  an  exception  is  taken,  if  the  said  judge 
before  whom  the  same  is  taken  refuses  to  allow  the  same,  and  the 
party  making  the  exception  puts  the  same  in  writing,  and  requests 
the  judge  to  put  his  seal  thereto,  in  testimony  of  the  same,  if  he  re- 
fuses so  to  put  his  seal,  it  shall  be  affixed  as  in  said  statute  is  set 
forth. 

And  whereas,  one has  filed  his  petition  before  the  Jus- 
tices [or  Judges]  of  the Court  of  Penna.,  complaining  that, 

lately  in  a  certain  suit  in  the  Court  of  Common  Pleas  of , 

county, Term,  19. .,  No.  . . .,  before  you  the  said  Hon 

between and  the  said ,  various  exceptions  were 

taken  and  alleged  to  your  rulings  on  evidence  offered;  which  excep- 
tions have  been  put  in  writing,  and  you  have  refused  to  allow  the 
same,  though  you  have  been  repeatedly  requested  and  prayed  to  affix 
your  seal  to  those  exceptions,  according  to  the  form  of  the  aforesaid 
statute.  Yet  so  it  is,  that  you  have  objected  and  still  do  object  and 
refuse  to  affix  your  seal  to  the  aforesaid  exceptions,  to  the  grievous 

injury  and  manifest  prejudice  of  the  said ;  and  the  said 

did  pray  said  Justices  [or  Judges]  to  provide  a  remedy 

for  him. 

And  because  we  are  desirous  that  the  aforesaid  statute  be  strictly 

observed,  and  that  justice  be  done  to  the  said  in  these 

premises,  we  command  you,  if  so  it  be,  that  on  or  before  the 

day  of 19 . . ,  you  affix  your  seal  to  the  aforesaid  exceptions 

thus  had  before  you  in  the  aforesaid  suit,  by  the  aforesaid , 

in  writing,  according  to  the  form  of  the  statute  aforesaid.  And 
herein  fail  not,  under  the  penalty  in  such  cases  impending. 

Witness  the  Honorable  ,  Chief  Justice  [or  President 

Judge]  of  our  said  Court,  at  this  day  of 

,  A.  D.  19.. 


Prothonotary. 
[See  §49,  Ap.,  for  recent  practice  in  Supreme  Court  by  decree.] 

484 


FORMS. 

Amount  in  Controversy  — Praecipe  for  Certiorari    §§  34,  35,  Ap. 

§34.    CERTIFICATE  OF  AMOUNT  IN  CONTROVERSY. 

-\  Common  Pleas, County. 

v.  I Term,  19... 

J  No 


I  hereby  certify  that  the  value  of  the  property  and  amount  in  con- 
troversy in  the  above  case  tried  before  me  is  greater  than  fifteen  hun- 
dred dollars. 


Judge. 


§35.    PRAECIPE  FOR  CERTIORARI— SUPREME  COURT. 
IN  THE  SUPREME  COURT  Or  PENNSYLVANIA 
FOR  THE DISTRICT. 

[Put  only  name  of  appellant  in  ->    Certiorari  to  the 

this  space.]  Court  of of  the 

W  County  of    

Term,  19. ., 

Appellant.    J    No 

Issue  Certiorari  to  the Court of  the  County 

of to  bring  up  record  and  proceedings  in  a  certain  action 

in  said  court,  No ,  Term ,  19 . . ,  wherein 

is  plaintiff  and defendant.  Returnable  to  next  Term,  sec. 

reg., 

To , 

Prothonotary  Supreme  Court, 

.  District. 


Attorney. .  for  Appellant. .. 
485 


APPENDIX. 
§§  36,  37,  Ap.      Praecipe   for   Certiorari — Appeal  from  C.   P. 

§36.    PRAECIPE  FOE  CERTIORARI— SUPERIOR  COURT. 
IN  THE  SUPERIOR  COURT  OF  PENNSYLVANIA. 
SITTING  AT 

[Put  only  name  of  appellant  in  this  ,.  Certiorari  to  the 

space.]  Court  of  of  the 

I  County  of    

[of  Term,  19..., 

Appellant.     I  jjo 

Issue  Certiorari  to  the Court of  the  County 

of to  bring  up  record  and  proceedings  in  a  certain  action 

in  said  Court,  No ,  Term ,  19. .,  wherein is 

plaintiff  and defendant.  Returnable  to  next  Term,  sec.  reg. 

To 

Prothonotary  Superior  Court, 
Sitting  at 


Attorney. .  for  Appellant. .. 

§37.  APPEAL  AND  AFFIDAVIT— APPEAL  FROM  COMMON 
PLEAS  TO  SUPREME  COURT. 

IN  THE  SUPREME  COURT  OF  PENNSYLVANIA 
FOR  THE DISTRICT. 

(Court  of  of  the 
County  of   
Term,  19.., 
No 

Enter  Appeal  on  behalf  of from of  the 

Court  of of  the  County  of 


Attorney . .  for  Appellant . . . 

To 

Prothonotary  Supreme  Court, 

District. 

486 


FORMS. 

Appeal  from  O.  C.  to  Supreme  Court         §§  37,  38,  Ap. 

State  of  Pennsylvania,  1 
County  of J 

being  duly saith  that  said  Appeal  is  not 

taken  for  the  purpose  of  delay,  but  because  appellant  believe . .  he . . 

ha.,   suffered  injustice  by  the   from  which   ..he.,   ha.. 

appealed. 


[Appellant  sign  here.] 

and    subscribed,    this 

day   of    , 

A.  D.  19... 

NOTE. — Above  form  is  also  used  in  appeals  from  criminal  courts. 


§38.  APPEAL  AND  AFFIDAVIT— APPEAL  FROM  ORPHANS' 
COURT  TO  SUPREME  COURT. 

IN  THE  SUPEEME  COURT  OF  PENNSYLVANIA 
FOR  THE DISTRICT. 

Appeal  from  the  Orphans '  Court  of  the  County  of   

Estate  of ,  No ,  Term, ,  19. ., 

being  aggrieved  by  the  definitive  decree  of  the  Orphans ' 

Court  in  the  above  Estate,  made  on  the day  of 

A.  D.  19. .,  .  .he. .  hereby  appeal. .  therefrom  to  the  Supreme  Court  of 
Pennsylvania. 


Attorney. .  for  Appellant. .. 

To   

Prothonotary  Supreme  Court, 
District. 

State  of  Pennsylvania,  "] 
County  of •' 


being  duly saith  that  said  Appeal  is  not 

487 


APPENDIX. 

§  39,  Ap.  Appeal  from  C.  P.   to   Superior   Court. 

taken  for  the  purpose  of  delay,  but  because  appellant  believe . .  he . . 

ha.,   suffered  injustice  by  the   from  which   ..he.,   ha.. 

appealed. 

[Appellant  sign  here.] 

and  subscribed   this 

day    of    

A.  D.  19... 

§39.  APPEAL  AND  AFFIDAVIT— APPEAL  FEOM  COMMON 
PLEAS  TO  SUPERIOR  COURT. 

IN  THE  SUPERIOR  COURT  OF  PENNSYLVANIA. 
SITTING  AT 

1  Court  of  of  the 
County  of   
Term,  19.., 
No 

Enter  Appeal  on  behalf  of from of  the 

Court  of of  the  County  of 


Attorney. .  for  Appellant. .. 

Prothonotary  Superior  Court, 
Sitting  at 

State  of  Pennsylvania,  "j 
County  of J 

being  duly says  that  said  Appeal  is  not 

taken  for  the  purpose  of  delay,  but  because  appellant  believe. .  he. . 

ha.,   suffered  injustice  by  the   from  which   ..he.,   ha.. 

appealed.  

[Appellant  sign  here.] 

and  subscribed  this 

day   of    , 

A.  D.  19... 

NOTE. The  above  form  is  also  used  in  appeals  from  the  criminal 

courts. 


FORMS. 

Appeal  from  O.  C.  to  Superior  Court.          §§  40,  41,  Ap. 

§40.  APPEAL  AND  AFFIDAVIT— APPEAL  FROM  ORPHANS' 
COURT  TO  SUPERIOR  COURT. 

IN  THE  SUPERIOR  COURT  OF  PENNSYLVANIA. 
SITTING  AT  

Appeal  from  the  Orphans '  Court  of  the  County  of  

Estate  of ,  No , Term,  19. ., 

being  aggrieved  by  the  definitive  decree  of  the  Orphans ' 

Court  in  the  above  Estate,  made  on  the day  of 

A.  D.  19. .,  .  .he. .  hereby  appeal. .  therefrom  to  the  Superior  Court  of 
Pennsylvania. 

Attorney. .  for  Appellant. .. 

To 

Prothonotary  Superior  Court, 
Sitting  at 

State  of  Pennsylvania,  "1 
County  of j 

being  duly saith  that  said  Appeal  is  not 

taken  for  the  purpose  of  delay,  but  because  appellant  believe,  .he.. 

ha. .  suffered  injustice  by  the from  which  .  .he. .  .  .ha. . 

appealed. 

[Appellant  sign  here.] 

and  subscribed   this 

day    of    

A.  D.  19... 

§41.  CERTIORARI  FOR  RECORD— APPEAL  FROM  COMMON 
PLEAS  TO  SUPREME  COURT. 

The  Supreme  Court  of  Pennsylvania. 
.  District. 


THE   COMMONWEALTH  OF  PENNSYLVANIA. 

[Seal  here.] 

certified  of  the  r 

489 


To  the  Justices  of  the  Court  of  Common  Pleas,  No. 

for  the  County  of 

Greeting:  We  being  willing  for  certain  causes,  to  be 
certified  of  the  matter  of  the  appeal  of 


APPENDIX. 

§  41,  Ap.  Certiorari — Ap.  from  C.  P.  to  Supreme  Court. 

from  the  judgment  [order  or  decree]  of  the  said  Common  Pleas  Court, 

entered  on  the day  of ,  19 . . ,  in  No , 

Term,  19. .,  wherein  the  said appellant,  was 

plaintiff  [or  defendant]  and was  defendant  [or  plaintiff], 

before  you,  or  some  of  you,  depending,  do  command  you,  that  the 
record  and  proceedings  aforesaid,  with  all  things  touching  the  same, 
before  the  Justices  of  our  Supreme  Court  of  Pennsylvania,  at  a  Su- 
preme Court  to  be  holden  at ,  in  and  for  the 

District,  the Monday  of next 

so  full  and  entire  as  in  your  Court  before  you  they  remain,  you  certify 
and  send,  together  with  this  writ  that  we  may  further  cause  to  be  done 
thereupon  that  which  of  right  and  according  to  the  laws  of  the  said 
State  ought. 

Witness  the  Honorable ,  Chief  Justice  of  our  said 

Supreme  Court,  at ,  the day  of 

in  the  year  of  our  Lord  one  thousand  nine  hundred  and 


Prothonotary. 
[Endorsements:] 

I  certify,  that are  surety  in  the  within 

case,  in  the  sum  of dollars. 


[Lower  Court]   Prothonotary. 

To  the  Honorable  the  Judges  of  the  Supreme  Court  of  the  Common- 
wealth of  Pennsylvania,  sitting  in  and  for  the District : 

The  record  and  process,  and  all  things  touching  the  same,  so  full  and 

entire  as  before  us  they  remain,  we  certify  and  send,  as  within  we  are 

commanded.  rr     &  -, 

[L.  fe.J 

[L.S.] 

[Judges  of  the  lower  court.] 

No Term,  19... 

SUPREME  COURT. 


490 


FORMS. 

Certiorari — Appeal  from  O.  C.  to  Supreme  Court.         §  42,  Ap. 

Certiorari  to  the  Court  of  Common 

Pleas  No for  the  County  of 

Returnable  the 

Monday  of ,  19 ... 

Rule  on  the  appellee,  to  appear  and 
plead  on  the  Return-day  of  the  writ. 


[Supreme  Court]   Prothonotary. 

§42.  CERTIORARI  FOR  RECORD— APPEAL  FROM  ORPHANS' 
COURT  TO  SUPREME  COURT. 

The  Supreme  Court  of  Pennsylvania.  "] 
District.  JSSm 

THE  COMMONWEALTH  OF  PENNSYLVANIA. 

To  the  Justices  of  the  Orphans'   Court  for  the 

[Seal  here.]         County  of  

Greeting:  We  being  willing  for  certain  causes,  to  be 

certified  of  the  matter  of  the  appeal  of   

from  the  definitive  decree  of  the  said  Orphans'  Court  made  on  the 

day  of 19 . . .,  in  No 

Term,  19. ..   Estate  of ,  deceased  [or  as  the  case  may  be] 

before  you,  or  some  of  you,  depending,  do  command  you,  that  the 
record  and  proceedings  aforesaid,  with  all  things  touching  the  same, 
before  the  Justices  of  our  Supreme  Court  of  Pennsylvania,  at  a  Su- 
preme Court  to  be  holden  at ,  in  and  for  the 

District,  the Monday  of next 

so  full  and  entire  as  in  your  Court  before  you  they  remain,  you  certify 
and  send,  together  with  this  writ  that  we  may  further  cause  to  be  done 
thereupon  that  which  of  right  and  according  to  the  laws  of  the  said 
State  ought. 

Witness  the  Honorable ,  Chief  Justice  of  our  said 

Supreme  Court,  at ,  the day  of 

in  the  year  of  our  Lord  one  thousand  nine  hundred  and 


Prothonotary. 
[Endorsements  as  in  §41,  of  Appendix.] 

491 


APPENDIX. 

§  43,  Ap.         Certiorari — Appeal  from  O.  &  T.  to  Supreme  Ct. 

§43.  CERTIORARI  FOR  RECORD— APPEAL  FROM  OYER  AND 
TERMINER  TO  SUPREME  COURT. 

The  Supreme  Court  of  Pennsylvania.  "1 
District.  J   v 

THE  COMMONWEALTH  OF  PENNSYLVANIA. 

To  the  Justices  of  the  Court  of  Oyer  and  Terminer, 

[Seal  here.]        f or  the  County  of 

Greeting:  We  being  willing  for  certain  causes  to  be 

certified  of  the  matter  of  the  appeal  of 

from  the  judgment  and  sentence  of  the  said  Oyer  and  Terminer  Court, 

entered  on  the day  of 19 . . ,  in  No , 

Term,  19 . . ,  wherein  the  Commonwealth  of  Penn- 
sylvania was  plaintiff  and  the  said  appellant  was  defendant 
before  you,  or  some  of  you,  depending,  do  command  you,  that  the 
record  and  proceedings  aforesaid,  with  all  things  touching  the  same, 
before  the  Justices  of  our  Supreme  Court  of  Pennsylvania,  at  a  Su- 
preme Court  to  be  holden  at ,  in  and  for  the 

District,  the Monday  of next 

so  full  and  entire  as  in  your  Court  before  you  they  remain,  you  certify 
and  send,  together  with  this  writ  that  we  may  further  cause  to  be  done 
thereupon  that  which  of  right  and  according  to  the  laws  of  the  said 
State  ought. 

Witness  the  Honorable ,  Chief  Justice  of  our  said 

Supreme  Court,  at ,  the day  of 

in  the  year  of  our  Lord  one  thousand  nine  hundred  and 


Prothonotarv. 
[Endorsements  as  in  §41  of  Appendix] 


§44.    CERTIORARI  FOR  RECORD— APPEAL  FROM   QUARTER 
SESSIONS  TO  SUPREME  COURT. 

The  Supreme  Court  of  Pennsylvania.  ~\ 
District.  J 

THE  COMMONWEALTH  OF  PENNSYLVANIA. 
492 


FORMS. 


Certiorari — Appeal  from  Q.  S.  to  Supreme  Court. 
Certiorari — Appeal  from  C.  P.  to  Superior  Court.    §§  44,  45,  Ap. 


To  the  Justices  of  the  Court  of  Quarter  Sessions, 

ro     ,  ,  for  the  County  of   

[Seal  here.]  *  *  .          ....  . 

Greeting:  We  being  willing  lor  certain  causes,  to  be 

certified  of  the  matter  of  the  appeal  of 

from  the  decree  of  said  Quarter  Sessions  Court,  entered  the 

day  of 19. .  in  No Term  19. .,  in  the  matter  of  [or  from 

the  judgment  and  sentence,  etc.,  as  in  §43,  above,  as  the  case  may  be] 
before  you,  or  some  of  you,  depending,  do  command  you,  that  the 
record  and  proceedings  aforesaid,  with  all  things  touching  the  same, 
before  the  Justices  of  our  Supreme  Court  of  Pennsylvania,  at  a  Su- 
preme Court  to  be  holden  at ,  in  and  for  the 

District,  the Monday  of next 

so  full  and  entire  as  in  your  Court  before  you  they  remain,  you  certify 
and  send,  together  with  this  writ  that  we  may  further  cause  to  be  done 
thereupon  that  which  of  right  and  according  to  the  laws  of  the  said 
State  ought. 

Witness  the  Honorable   ,  Chief  Justice  of  our  Su- 
preme Court,  at ,  the day  of 

in  the  year  of  our  Lord  one  thousand  nine  hundred  and 


Prothonotary. 
[Endorsements  as  in  §41  of  Appendix] 


§45.  CERTIORARI  FOR  RECORD— APPEAL  FROM  COMMON 
PLEAS  TO  SUPERIOR  COURT. 


The  Superior  Court  of  Pennsylvania 
Sitting  at  , 


ia,   "1 
^.f. 


THE  COMMONWEALTH  OF  PENNSYLVANIA. 

To  the  Justices  of  the  Court  of  Common  Pleas,  No. 

ro    ,  ,        T          for  the  County  of 

[Seal  here.]  .  f       „ 

Greeting:   We  being  willing  for  certain   causes,  to 

be  certified  of  [as  in  §41,  Appendix,  above] 
before  you,  or  some  of  you,  depending,  do  command  you,  that  the 
record  and  proceedings  aforesaid,  with  all  things  touching  the  same, 
before  the  Justices  of  our  Superior  Court  of  Pennsylvania,  at  a  Su- 

493 


APPENDIX. 
§§  45,  46,  Ap.      Certiorari — Appeal  from  C.  P.  &  O.  C.  to  Superior  Ct. 

perior  Court  to  be  holden  at ,  the Monday  of 

next, so  full  and  entire  as  in  your  Court  be- 
fore you  they  remain,  you  certify  and  send,  togther  with  this  writ, 
that  we  may  further  cause  to  be  done  thereupon  that  which  of  right 
and  according  to  the  laws  of  the  said  State  ought. 

Witness  the  Honorable  ,  President  Judge  of  our  Su- 
perior Court,  at ,  the day  of 

in  the  year  of  our  Lord  one  thousand  nine  hundred  and 


Prothonotary. 
[Endorsements  as  in  §41  of  Appendix] 


§46.  CERTIORARI  FOR  RECORD— APPEAL  FROM  ORPHANS' 
COURT  TO  SUPERIOR  COURT. 

The  Superior  Court  of  Pennsylvania,""! 
Sitting  at  j 

THE  COMMONWEALTH  OF  PENNSYLVANIA. 

To  the  Justices   of  the   Orphans'   Court   for   the 

[Seal  here.]        County  of 

Greeting:  We  being  willing  for  certain  causes,  to  be 

certified  of  [as  in  §42,  Appendix,  above]  before  you, 
or  some  of  you,  depending,  do  command  you,  that  the  record  and  pro- 
ceedings aforesaid,  with  all  things  touching  the  same,  before  the  Jus- 
tices of  our  Superior  Court  of  Pennsylvania,  at  a  Superior  Court  to  be 

holden  at ,  the Monday  of next, 

so  full  and  entire  as  in  your  Court  before  you  they  remain,  you  certify 
and  send,  together  with  this  writ  that  we  may  further  cause  to  be  done 
thereupon  that  which  of  right  and  according  to  the  laws  of  the  said 
State  ought. 

Witness  the  Honorable ,  President  Judge  of  our  said 

Superior  Court,  at ,  the day  of 

in  the  year  of  our  Lord  one  thousand  nine  hundred  and 


Prothonotary. 
[Endorsements  as  in  §41  of  Appendix] 

494 


FORMS. 

Certiorari—  Appeal  from  O.  &  T.  &  Q.  S.  to  Superior  Ct.   §  47,  48  Ap. 

§47.  CERTIORARI  FOR  RECORD—  APPEAL  FROM  OYER  AND 
TERMINER  TO  SUPERIOR  COURT. 

The  Superior  Court  of  Pennsylvania,  "| 
Sitting  at  ..............  J   * 

THE  COMMONWEALTH  OF  PENNSYLVANIA. 

To  the  Justices  of  the  Court  of  Oyer  and  Terminer, 

ro     ,  ,        T         for  the  County  of  ............. 

[Seal  here.]  J    . 

Greeting:  We  being  willing  for  certain  causes,  to  be 

certified  of  [as  in  §43,  Appendix,  above]  before  you, 
or  some  of  you,  depending,  do  command  you,  that  the  record  and  pro- 
ceedings aforesaid,  with  all  things  touching  the  same,  before  the  Jus- 
tices of  our  Superior  Court  of  Pennsylvania,  at  a  Superior  Court  to  be 
holden  at   ............  ,  in  and  for  the  ............   District,  the 

..............    Monday    of    ..............    next,    .............. 

so  full  and  entire  as  in  your  Court  before  you  they  remain,  you  certify 
and  send,  together  with  this  writ  that  we  may  further  cause  to  be  done 
thereupon  that  which  of  right  and  according  to  the  laws  of  the  said 
State  ought. 
Witness  the  Honorable  ............  ,  President  Judge  of  our  said 

Superior  Court,  at  ............  ,  the  ............  day  of  ........... 

in  the  year  of  our  Lord  one  thousand  nine  hundred  and  ............. 


Prothonotary. 
[Endorsements  as  in  §41  of  Appendix] 


§48.     CERTIORARI  FOR  RECORD— APPEAL  FROM  QUARTER 
SESSIONS  TO  SUPERIOR  COURT. 

The  Superior  Court  of  Pennsylvania, 
Sitting  at 

THE  COMMONWEALTH  OF  PENNSYLVANIA. 

To  the  Justices  of  the  Court  of  Quarter  Sessions 

,          for  the  County  of   

Greeting:  We  being  willing  for  certain  causes,  to  be 
certified  of  [as  in  §44,  Appendix,  above]  before  you, 

495 


APPENDIX. 

§§  48,  49,  Ap.       Petition   Suggesting   Diminution   of   Record 

or  some  of  you,  depending,  do  command  you,  that  the  record 
and  proceedings  aforesaid,  with  all  things  touching  the  same,  be- 
fore the  Justices  of  our  Superior  Court  of  Pennsylvania,  at  a  Su- 
perior Court  to  be  holden  at ,  the Monday  of 

next, so  full  and  entire  as  in  your  court  before  you  they  re- 
main, you  certify  and  send,  together  with  this  writ,  that  we  may  fur- 
ther cause  to  be  done  thereupon  that  which  of  right  and  according 
to  the  laws  of  the  said  State  ought. 

Witness  the  Honorable  ,  President  Judge  of  our  said 

Superior  Court,  at ,  the day  of 

in  the  year  of  our  Lord  one  thousand  nine  hundred  and 


Prothonotary. 
[Endorsements  as  in  §41  of  Appendix.] 


§49.    PETITION  SUGGESTING  DIMINUTION  OF  RECORD. 

In  the 

COURT  OF  PENNSYLVANIA. 

Petition  Suggesting  Diminution  of  Record. 

To  the  Honorable,  the  Judges  of  Said  Court: 

The  petition  of ,  the  above  named  Appellant,  respect- 
fully represents: 

That  your  petitioner  duly  entered  his  appeal,  and  in  response  to 
the  certiorari  of  your  Honorable  Court,  the  court  of  Common  Pleas 
returned,  [or  failed  to  return]  as  part  of  its  record,  the  following: 

[Set  out  the  matter  as  to  which  a  mistake  is  alleged  to  have  been 
made  in  the  return  and  state  in  detail  the  nature  of  the  omission  and 
what  steps,  if  any,  were  taken  to  correct  the  error  in  the  court  below.] 

Your  petitioner  further  states  that  the  missing  part  of  the  record 
is  essential  to  petitioner's  case. 

Your  petitioner  therefore  suggests  diminution  of  the  record  and 
prays  Your  Honorable  Court  to  order  a  special  writ  of  certiorari,  di- 
recting and  commanding  the  Honorable Judge  of  the  said 

Court  of  Common  Pleas  of county,  to  send  up  to  your 

496 


FORMS. 

Decree,  Certificate  of  Court  and  Stenographer.       §§  49,50,  Ap. 

Honorable  Court  a  true  and  correct  copy  of  the  [matters  before  enum- 
erated] as  they  appear  on  the  records  of  said  Court. 

And  he  will  ever  pray ! 

(Add  Affidavit  of  Proof.) 

[The  Supreme  Court  has  recently  introduced  the  practice,  in  place 
of  a  writ  of  certiorari,  of  entering  a  decree  on  Remittitur  Sur  Dimi- 
nution of  Record,  where  the  record  lacks  the  certificates  of  the  sten- 
ographer and  the  trial  judge,  as  follows,  the  petition  in  this  case  pray- 
ing for  an  order  of  the  court  instead  of  the  writ  of  certiorari:] 

Decree. 

And  now,  ,  19 . . ,  upon  consideration  of  the  foregoing 

petition,  and  upon  motion  of  ,  Esq.,  ,  so- 
licitor for ,  it  is  ordered  and  decreed  that  in  the  matter 

of  the  Appeal  of  from  the  judgment  of  the  Court  of 

of County,  as  of Term,  19 . . , 

No where   the  said   Appellant   was    and 

,  the  record  and  proceedings  therein  be  and  they  are 

hereby  remitted  to  the  said  Court  of  of  

County  for  the  purpose  of  having  affixed  to  the  notes  of  testimony 
therein  the  certificate  of  the  official  stenographer  and  the  trial  judge 
of  the  said  court  attesting  the  authenticity  of  the  said  notes  of  testi- 
mony, and  it  is  further  ordered  and  decreed  that  after  the  said  cer- 
tificates have  been  made  and  affixed  to  the  said  notes  of  testimony  in 

the  said  Court  of  of  County  the  record 

and  proceedings  of  the  said  cause  be  returned  by  the  said  Court  of 

of County  to  this  Court  without  further 

order. 

Per  Curiam. 

§50.  CERTIORARI  SUR  DIMINUTION  OF  RECORD— SUPREME 
COURT. 


In  the  Supreme  Court  of  Pennsylvania. 
For  the  .  .  District. 


I.M. 


THE  COMMONWEALTH  OF  PENNSYLVANIA. 

To  the  Justices  of  the Court  . . 

[Seal  here.]         for  the  County  of  ,  Greeting: 

497 
32 


APPENDIX. 

§  50,  Ap.  Certiorari   Sur   Diminution  of  Record. 

Whereas,  by  our  writ  of  Certiorari  we  commanded 

you,  in  a  plea  [appeal  of ,  in  the  matter 

of in  No ,  Term,  19. . ],  that 

if  Judgment  were  rendered,  then  the  record  and  process  and  all  things 
touching  the  same,  under  your  seal  distinctly  and  openly,  you  should 
have  before  the  Justices  of  our  Supreme  Court,  at  a  Supreme  Court  to 

be  holden  at ,  in  and  for  the  said District, 

on  the  Monday  of  19 . . ,  and  that  writ ; 

that  the  record  and  process  aforesaid  being  inspected,  we  might  fur- 
ther cause  to  be  done  what  of  right  and  according  to  our  laws  and  cus- 
toms ought ;  and  now,  on  behalf  of  said ,  it  is  shown  to 

us,  that  although,  under  pretence  of  our  said  writ,  you  may  have  sent 
before  us,  on  the  day  last  aforesaid,  the  record  and  process  aforesaid 
in  some  part  thereof,  yet  other  part  of  the  same  record  and  process, 
and  also  certain  other  things  touching  them,  still  remain  before  you 

to  be  sent,  to no  small  damage  and  grievance;  therefore, 

if  so  it  is,  then  we  command  you,  that  you  send  to  us  without  delay, 
under  your  seal . .  distinctly  and  openly,  the  residue  of  the  record  and 
process  aforesaid,  and  also  all  other  things  touching  them,  which,  as  is 
before  said,  remain  before  you  to  be  sent,  and  this  writ ;  that  the  same 
being  inspected,  we  may  further  cause  to  be  done  what  of  right  and 
according  to  our  laws  and  customs  ought. 

Witness  the  Honorable ,  Chief  Justice  of  our  said  Su- 
preme Court  at ,  this day  of 

in  the  year  of  our  Lord  one  thousand  nine  hundred  and 


Prothonotary. 
Allowed  by 


§51.    CERTIORARI  SUR  DIMINUTION  OF  RECORD— SUPERIOR 
COURT. 


The  Superior  Court  of  Pennsylvania, 

ss. 


Sitting  at  

THE  COMMONWEALTH  OF  PENNSYLVANIA. 


To  the  Judges  of  the Court  . 

[Seal  here.]        for  the  County  of Greeting : 

498 


FORMS. 

Certiorari  Sur  Diminution  of  Record  §  51,  Ap. 

Whereas,    by    our   writ    of    we    com- 
manded you,  in  a  plea   [as  in  Appendix  §50,  next 
above]  that  if  Judgment  were  rendered,  then  the  record  and  process 
and  all  things  touching  the  same,  under  your  seal  distinctly  and  openly, 
you  should  have  before  the  Judges  of  our  Superior  Court,  at  a  Superior 

Court  to  be  holden  at ,  on  the Monday  of 

19. .,  and  that  writ ;  that  the  record  and  process  aforesaid 

being  inspected,  we  might  further  cause  to  be  done  what  of  right  and 
according  to  our  laws  and  customs  ought;  and  now,  on  behalf  of  said 
appellant . . ,  it  is  shown  to  us,  that  although,  under  pretence  of  our 
said  writ,  you  may  have  sent  before  us,  on  the  day  last  aforesaid,  the 
record  and  process  aforesaid  in  some  part  thereof,  yet  other  part  of 
the  same  record  and  process,  and  also  certain  other  things  touching 
them,  still  remain  before  you  to  be  sent  to no  small  dam- 
age and  grievance;  therefore,  if  so  it  is,  then  we  command  you,  that 
you  send  to  us  without  delay,  under  your  seal  distinctly  and  openly, 

the  residue  of  the  record  and  process  aforesaid, and  also 

all  other  things  touching  them,  which,  as  is  before  said,  remain  before 
you  to  be  sent,  and  this  writ;  that  the  same  being  inspected,  we  may 
further  cause  to  be  done  what  of  right  and  according  to  our  laws  and 
customs  ought 

Witness  the  Honorable ,  President  Judge  of  our  said 

Superior  Court,  at this day  of 

in  the  year  of  our  Lord  one  thousand  nine  hundred  and  . 


Prothonotary. 
Allowed  by 


§52.    APPEAL  BOND— COMMON  PLEAS. 


-|    Court  of  Common  Pleas  of  the 

v.  I  County  of ,  

I    Term,  19..,  No 


Appellant  having  appealed  from  the  order,  judgment  or  decree  of  the 

Court  of  Common  Pleas  No of  the  County  of , 

entered    19..,  to  the   Court,  comes  into 

499 


APPENDIX. 

§§  52,    53,    Ap.     Appeal  Bond  C.  P. — Affidavit  of  Sureties 

court  with his  sureties  and  they  acknowledge  themselves 

bound  and  indebted  to  the  Commonwealth  of  Pennsylvania,  for  the 

use  of  [the  appellees] in  the  sum  of  [usually  double  the 

amount  of  judgment,  order  or  decree]  to  be  levied  of  their  property, 
real  and  personal,  to  be  paid  said  obligee certain  attor- 
ney or  assigns, 

Upon  this  condition,  That  if  the  said  appellant  shall  prosecute  the 
appeal  with  effect  and  shall  pay  the  amount  finally  adjudged  to  be 
due  upon  such  order,  judgment  or  decree  including  interest  and  costs, 
and  shall  pay  all  costs  and  damages  awarded  by  the  appellate  court,  or 
legally  chargeable  against  said  appellant,  and  shall  pay  all  damages  for 
injuries  suffered  by  appellees  from  the  time  of  the  decree  entered  and 
all  mesne  profits  accruing  after  judgment,  if  any,  then  the  above  obli- 
gation to  be  void,  or  else  to  remain  in  full  force  and  virtue. 

PL   S  1 
Sealed  and   delivered,   the    . . . 

day  of A.D.19... 

L-L"-  o-J 

In  presence  of 


§53.    AFFIDAVIT  OF  SURETIES— APPROVAL  BY  COURT. 

Court    of    Common    Pleas   of   the 

County    of    

Term,  19..,  No 

v.  (•  Surety   for    

Amount     of     Property     Secured, 

$ 

Penal  Sum  of  bond  $  

being  about  to  become  surety  in  the  above  entitled 

case,  and  being  duly according  to  law  deposes  and  says : 

1st.     I  reside  at and  my  occupation  is 

2d.  I  am  the  owner  of  real  estate  in  the  County  of , 

as  follows :  

500 


FORMS. 

Affidavit  of  Sureties — Approval.  §  53,  Ap. 

3d.    The  value  of  said  real  estate  is  $ and  the  rent 

It  is  assessed  for  the  purpose  of  taxation,  at  the  value 

of  $ and  is  so  assessed  in  my  name. 

4th.     There  are   incumbrances  against  the  said  real 

estate  as  follows: and  there  is  no  other  judgment  bind- 
ing the  said  land  or  mortgage,  ground  rent  or  other  ineumbrance  of 
any  kind,  except  those  above  named. 

5th.     The  title  to  the  said  real  estate  is  in  my  OWB  name  and  the 
same  is  not  subject  to  any  trust. 

6th.     I  obtained  the  said  real  estate  in by 

from and  my  deed  therefor  is  recorded. 

7th.     There  are judgments  against  me 

8th.    I  am  not  surety  in  any  other  case,  or  for  any  public  officer 


(Signature  of  Surety) 

Sworn  [or  affirmed]   and  subscribed 
before  me  .  .  19. . 


Prothonotary. 

Notice  of  application  for  approval  of  this  surety  was  given  to  the 

by  writing  on  the   day  of  

19.. 


Attorney  for 

The  above-named  deponent  is  approved  as  surety  in  the  above  case. 

Judge. 
501 


APPENDIX. 
§  54,  Ap.  Appeal  Bond,  O.  C. 


§54.  APPEAL  BOND— ORPHANS'  COURT. 

In  the  matter  of  Estate  of  -^ 


Term,  19... 

No.  . 


Know  all  men  by  these  presents,  That  we,  are  held 

and  firmly  bound  unto  the  Commonwealth  of  Pennsylvania,  in  the  sum 

of  [usually  double  amount  of  order  or  decree]    

dollars,  lawful  money,  to  be  paid  said  Commonwealth  of  Pennsylvania, 
its  certain  attorney  or  assigns;  to  which  payment  well  and  truly  to 
be  made,  we  bind  ourselves  and  each  of  us,  our  heirs,  executors  and 

administrators    jointly  and  severally,  firmly  by  these 

presents.  Sealed  with  our  seals,  and  dated  the  day  of 

in  the  year  of  our  Lord  one  thousand  nine  hundred  and 


Whereas,  ha. .  appealed  from  the  final  decree 

of  the  Orphans '  Court  for  the  County  of   ,  made  on  the 

day  of 19... 

Now,  the  condition  of  the  above  obligation  is  such,  That,  if  the  said 

shall  prosecute appeal  with  effect,  and  pay 

all  costs  and  damages   awarded  by  the  appellate  court  or  legally 

chargeable  against then  the  above  obligation  to  be  void, 

or  else  to  remain  in  full  force  and  virtue. 


Sealed  and  delivered 
In  the  presence  of 


[L.  S.] 
[L.  S.] 
[L.  S.] 
[L.  S.] 


502 


FORMS. 

Fixing  Amt.  of  Security,  O.  C. — Order  for  Appearance     §§  55,  56,  Ap. 

§55.    FIXING  AMOUNT  OF  SECURITY— ORPHANS'   COURT. 
IN  THE  ORPHANS '  COUET  OF  COUNTY. 

No ,  Term  19... 

Estate  of 


I 


Sur  appeal  to  the Court. 


And  now ,  19. .,  the  court  fix  security  on  the  said  ap- 
peal in  the  sum  of  [twice  amount  involved]. 


[Lower  court]  Judge. 


§56.  ORDER  FOR  APPEARANCE  FOR  APPELLEE. 

IN  THE COURT  OF  PENNSYLVANIA. 

SITTING  AT  . 


Appellant.     | Term,  19. 

v. 


To  the  Prothonotary  of  the Court. 

Enter  my  appearance  for  the  appellee  in  the  above  case. 


[Put  address  here.]  Attorney  for  Appellee. 

,19... 


503 


APPENDIX. 

§57,   §58  (A),  Ap.      Party  Dead,  Substitution. — Paper-Books. 

§57.  SUBSTITUTION  OF  PERSONAL  REPRESENTATIVE  OF 
DECEASED  PARTY. 

IN  THE COURT  OF  PENNSYLVANIA. 

SITTING  AT  . 


.        „     ,      ] Term.  19... 

Appellant. 


'No. 


And  now,  to  wit ,  19 . . ,  the  death  of ,  the 

appellant,  is  suggested,  and  that  letters  of  administration  on  his  es- 
tate were  granted  to   ,  by  the  Register  of  Wills  of  the 

County  of    on    ,  19 . . ;   and  the  said 

administrator   as   aforesaid,   is  hereby   substituted   as 

plaintiff  and  as  appellant  in  the  above  case. 


Attorney  for 


§  58.  FORMS  FOR  PAPER-BOOKS.  (A)  Appeals 
from  Judgments  on  Verdicts. 

General  Requirements.  The  following  directions  accompany- 
ing these  forms  have  been  prepared  from  the  rules  of  the  appel- 
late courts,  and  the  decisions.  Some  suggestions  are  made 
in  the  details  which  it  is  believed  will  contribute  to  accuracy  and 
facility  in  preparing  and  consulting  the  record.  The  general  re- 
quirements are  as  follows: 

i.  Penalty  for  Non-Compliance  with  Rules.  'When  the 
appellant  is  in  default  according  to  these  rules,  he  may  be  non- 
suited on  motion ;  and  when  the  appellee  is  in  default,  he  will  not 
be  heard  except  by  special  indulgence  of  the  court.  Supreme 
Court  Rule  43 ;  Superior  Court  Rule  32 ;  §205. 

When  paper-books  are  furnished  which  differ  in  any  material 
respect  from  those  here  prescribed,  the  parties  furnishing  them 
shall  be  considered  in  the  same  default  as  if  none  had  been  fur- 

504 


[Forms  for  Paper-Books.]      [§  58  (A),  Ap.] 

nished,  and  on  a  proper  occasion  the  court  will,  of  its  own  motion, 
non-suit  or  silence  the  defaulting  party,  or  suppress  the  paper- 
book.  Supreme  Court  Rule  44 ;  Superior  Court  Rule  33 ;  §205. 

2.  Size  of  Paper-Book,  Quality  of  Paper,  etc.        Paper- 
books  shall  be  furnished  on  unglazed  book-paper,  9  inches  by  6 
inches  in  size,  and  printed  from  small  pica  or  long  primer  type, 
with  a  margin  of  not  less  than  one  inch.    Supreme  Court  Rule  45  ; 
Superior  Court  Rule  34;  §189,  above. 

Small  pica  and  long  primer  type  are  no  longer  cast  in  type 
foundries.  In  place  of  them  the  nearest  corresponding  sizes  are 
designated  n  point  and  10  point,  respectively.  These  two  sizes 
are  used  in  these  forms  for  paper-books,  this  paragraph  being  in 
10  point  type. 

3.  Head-lines  to  Each  Page.     Brief  words  shall  be  print- 
ed at  the  top  of  each  page  of  the  paper-book,  indicating  the  char- 
acter of  the  matter  contained  therein;  and,  in  the  appendix,  the 
name  of  the  witness  or  the  character  of  the  document  shall  so 
appear.    Supreme  Court  Rule  39;  Superior  Court  Rule  28;  §189, 
above. 

4.  Paging.     The  pages  of  the  paper-book  shall  be  numbered 
in  Arabic  figures,  and  not  Roman  numerals,  those  in  the  appen- 
dix to  be  followed  by  a  small  a,  thus :  100  a.    Supreme  Court  Rule 
39;  Superior  Court  Rule  28;  §189. 

The  appendix,  whether  bound  separately  or  with  the  rest  of  the 
paper-book,  must  have  a  separate  paging,  beginning  with  la  and 
not  looa,  as  used  in  the  rule  as  an  illustration.  Oral  construc- 
tion of  Rule  by  Supreme  Court,  Jan.,  1912. 

Insert  paging  at  top  corner  of  page  in  margin  so  as  to  catch  the 
eye  readily  in  turning  pages,  never  at  the  bottom  of  the  page. 

5.  Cover  of  Paper-Books.     The  cover  of  the  paper-books 
must  be  light  in  color,  and  firm  in  texture,  to  permit  writing  in 
ink  thereon  to  be  easily  read.    Supreme  Court  Rule  45 ;  Superior 
Court  Rule  34;  §189,  above.     For  contents  of  cover  see  below, 
this  section. 

6.  Contents  of  Paper-Book,  Order  of.    In  all  cases  where 
appeals  are  from  judgments  on  verdicts,  appellants'  paper-books 

[505] 


[§  58  (A),  Ap.]      [Forms  for  Paper-Books.] 

shall  contain  the  following  matters  "in  the  following  order:"  (I- 
XI,  this  section,  below).  See  §190,  above.  The  words  quoted  are 
omitted  from  the  other  rules,  ( (B)-(H),  this  section,  below),  but, 
on  reason,  they  should  apply  universally.  The  language  is  taken 
from  rules  adopted  Sept.  6,  1852. 

7.  Appendix.    If  a  paper-book  contains  more  than  one  hun- 
dred pages,  the  appendix  shall  be  printed  in  a  separate  paper- 
book  with  a  proper  index  thereto.    Supreme  Court  Rule  46;  Su- 
perior Court  Rule  35;  §189,  above.     See  index  following,  and 
suggested  form  for  appendix  at  end  of  this  section. 

8.  Number  of  Copies  in  Supreme  Court.   In  the  Supreme 
Court  each  party  shall  furnish  one  copy  of  his  paper-book  for 
each  of  the  Judges  and  eleven  to  the  Prothonotary — two  for  the 
reporter,  one  for  the  Law  Association  of  Philadelphia,  one  for 
the  West  Publishing  Company,  one  for  the  State  Library,  one  for 
the  "Legal  Intelligencer,"  two  for  the  prothonotary's  office,  one 
for  the  office  of  the  court  of  each  of  the  other  districts,  and  one 
for  the  records.     Supreme  Court  Rule  42 ;  §203,  above. 

9.  Number  of  Copies  in  Superior  Court.      In  the  Supe- 
rior Court  each  person  shall  furnish  a  copy  of  his  paper-book  to 
each  Judge  and  file  eleven  copies  with  the  prothonotary,  one  of 
which  is  to  remain  with  the  records,  two  to  be  delivered  to  the 
reporter,  two  to  the  crier,  one  for  the  State  Library,  one  for  the 
Law  Association  of  Philadelphia,  one  for  the  "Legal  Intelligen- 
cer," one  for  the  Advance  Notes,  one  for  the  Allegheny  County 
Law  Library,  and  one  for  the  Hirst  Free  Law  Library.    Superior 
Court  Rule  31 ;  §203,  above. 

10.  Additional  Copies.    At  least  fifty  copies  of  the  paper- 
book  should  be  printed.     This  provides  for  any  demand  which 
may  arise  for  extra  copies  in  the  attorney's  own  office,  and  also 
allows  him  to  meet  reasonable  requests  for  copies  by  parties  to  the 
suit,  and  by  lawyers  or  legal  publishers  interested  in  the  question 
involved. 


[506] 


[Forms  for  Paper-Books.]      [§  58  (A),  Ap.] 

[FRONT  COVER] 

Term,  19. ..  No 

IN  THE 

COURT  OF  PENNSYLVANIA 

Sitting  at  


[Plaintiff's  Name  Here] 

vs. 
[Defendant's  Name  Here] 

Appellant  [or  as  the  case  may  be.] 

Appeal  from  the  Court  of ....... .for  the  County  of . .  . 

Term,  19 . . . ,  No 


APPELLANT'S  PAPER-BOOK. 


[INSERT  COUNSEL'S  NAME  HERE 
IN  INVERSE  ORDER  OF  SENIORITY.] 

Attorneys  for  Appellant. 

[Contents  of  Cover.  The  cover  must  show  the  number  and 
term  of  the  case  in  the  appellate  court,  the  names  of  the  parties 
in  the  same  order  as  they  appear  on  the  docket  of  the  court  be- 
low, with  the  addition  of  the  word  "Appellant"  after  the  name 
of  the  party  taking  the  appeal,  and  the  court  from  which  the 
appeal  is  taken  (and,  although  not  required  by  rule  of  court,  it  is 
good  practice  to  add  the  term  and  number  of  the  case  in  the 
court  below ) .  Supreme  Court  Rule  45 ;  Superior  Court  Rule  34 ; 
§189,  above.] 

[Substitution  Where  Parties  Have  Died.  If  any  of  the 
parties  have  died  since  verdict  or  judgment,  the  names  of  the 
substituted  parties  should  be  inserted  on  the  cover  in  the  same 
order  as  the  names  of  the  original  parties  appear  on  the  docket 
of  the  court  below.  Cf.  §131,  above.  For  form  for  substitution, 
see  Appendix,  §57. 


[§  58  (A),  Ap.]      [Forms  for  Paper-Books.] 

[INSIDE  FRONT  COVER] 

INDEX 

PAGE. 

I.  (a)   Names  of  Parties,  and  («b)  Form  of  Action  ....  I 

II.  Docket  Entries   ...................  •.  .............  i 

III.  Abstract  of  Proceedings  .........................  2 

IV.  Certificate  of  Amount  in  Controversy  ..............  2 

V.  Statement  of  Questions  Involved  ..................  2 

VI.     History  of  Case  .................................  3 

VII.     (a)  Charge  of  Court,  (b),  (c)  Points  and  Answers  .  .  6 

VIII.     Verdict  and  Judgment  ...........................  8 

IX.     Assignments  of  Error  ...........................  10 

X.     Argument  ......................................  12 

[I,  II  and  III  inserted  by  way  of  illustration.] 

(I.)     Original  contract  ultra  vires  ...............  12 

Lancaster  County  v.   Fulton,   128  Pa.  48, 

(1889)    ...........................  ..  13 

(II.)     Alleged  new  contract  merely  iteration  of  void 

contract  .............................  15 

Evidence    .............................  16 

(III.)     If  evidence  of  new  contract  was  sufficient  for 
jury,  yet  contradictions  of  previous  testi 

mony  are  such  as  to  prevent  recovery  :  .  .  20 

Evidence  ..............................  23 

Hunter  v.  Nolf,  71  Pa.  282,  285,  (1872)   .  .  24 

Mead  v.  Conroe,  113  Pa.  220,  226,  (1886)  .  25 
(Index  only  leading  cases.) 

XL     Appendix. 

Index  to  Appendix. 

[To  be  printed  on  inside  cover  of  Appendix  when  Appendix  is 
printed  in  separate  book.] 


Affidavit  of  Defense 

Appearances   ...................................     ia 

Certification  of  Recor  d  ..........................  2ia 

[508] 


[Forms  for  Paper-Books.]      [§  58  (A),  Ap.] 

Evidence : 

Admissions  in  Evidence   2a 

Plaintiff's  Evidence  begins   la 

Defendant's  Evidence  begins   I5a 

Plaintiff's  Evidence  in  Rebuttal  begins i8a 

(See  Witnesses  below.) 
Documentary  Evidence: 

Check  from to dated iQa 

Deed    from to dated 2oa 

Letter  from to dated 2ia 

Exhibit  "A,"  contract  in  suit 22a 

Judgment,  Entry  of,  n.o.v 2oa 

Exceptions  to 2oa 

Motion  for  2oa 

Motion  for  New  Trial i8a 

Motion  for  Judgment  n.o.v 2oa 

New  trial,  motion  for i8a 

Opinion  of  Court  on  Motion  for  New  Trial i8a 

Plaintiff's  Statement 22a 

Plea   243 

Witnesses : 

Plaintiff's  Witnesses : 

Direct.  Cross.  Redirect. 

Doe,  John   loa          I2a          I3a 

Roe,   Richard    ia  6a  8a 

etc.,  etc. 

Defendant's  Witnesses: 

[Arrange  alphabetically  as  above.] 

Plaintiff's  Witnesses  in  Rebuttal : 
[Same  as  above.] 

[All  paper-books  shall  contain  a  full  and  complete  index,  includ- 
ing an  index  of  the  appendix,  which  shall  be  on  the  inside  of  the 
front  cover  of  the  book,  or  on  the  following  pages  thereof.  The 
index  of  the  appendix  shall  contain  a  full  and  complete  reference 
to  its  contents,  including  exhibits  and  the  names  of  witnesses,  and 

[509] 


[§  58  (A),  Ap.]      [Forms  for  Paper-Books.] 

where  the  testimony  is  printed,  indicating  in  each  instance  where 
the  examination,  cross-examination  and  re-examination  begins. 
If  a  paper-book  contains  more  than  one  hundred  pages,  the  appen- 
dix shall  be  printed  in  a  separate  paper-book  with  a  proper  index 
thereto.  Supreme  Court  Rule  46;  Superior  Court  Rule  35;  §189, 
above.] 

[The  usual  meaning  of  an  index  implies  an  alphabetical  arrange- 
ment. Sometimes  "index"  is  used  to  mean  table  of  contents.  A 
large  majority  of  the  paper-books  inspected  by  the  editor,  covering 
a  period  of  many  years,  favor  the  latter  construction.  Uniformity 
and  facility  of  reference  seem  also  to  favor  this  construction,  as 
to  the  paper-book  proper.  The  index  to  the  appendix  should  be 
alphabetical  as  far  as  practicable.] 

[N.  B.  Some  uniformity  as  to  the  nomenclature  and  arrange- 
ment should  be  adopted  in  the  preparation  of  the  index  to  the  ap- 
pendix. The  order  specified  by  the  rules  of  court  for  the  mat- 
ters contained  in  appellant's  paper-book  seems  to  fix  the  order  for 
these  matters  in  the  index  to  the  paper-book  proper.  If  "Plain- 
tiff's Statement"  is  always  used  in  place  of  "Statement  of  Claim" 
it  will  precede  "Plea"  in  the  index  as  it  does  chronologically,  and 
be  more  readily  found  than  if  the  terms  are  used  indiscriminately. 
"Affidavit  of  Defence"  should  be  used ;  not  "Defence,  Affidavit 
of."  It  is  better  to  arrange  the  "Documentary  Evidence"  alpha- 
betically by  character  than  chronologically  as  Exhibits  "A,"  "B," 
"C,"  etc.,  unless  it  is  referred  to  in  the  paper-book  in  the  latter 
way,  in  which  case  the  latter  way  is  better,  but  always  indicate 
character  of  exhibit.  It  seems  best  to  arrange  witnesses  alphabet- 
ically under  chronological  heads  of  "Plaintiff's  Witnesses,"  "De- 
fendant's Witnesses,"  and  "Plaintiff's  Witnesses  in  Rebuttal."] 

[Where  findings  of  fact  are  objected  to,  or  evidence  is  needed 
for  other  reasons,  counsel  should  give  a  synopsis,  or  collect  the  evi- 
dence in  full  in  their  argument,  giving  reference  to  pages:  §189 
note  12  (n)  ;  §199.  The  index  should  show  where  the  evidence 
is  collected  under  the  different  branches  of  the  case.] 


Names  of  Parties  and  Form  of  Action. 


[FIRST  PAGE  FOLLOWING  INDEX.] 

IN  THE 

COURT  OF  PENNSYLVANIA 

Sitting  at 

Term,  19. . ,  No 

[PLAINTIFF'S  NAME  HERE.] 

vs. 
[DEFENDANT'S  NAME  HERE.] 

Appellant  [or  as  the  case  may  be.] 

Appeal  from  the  Court  of . 

for  the  County  of No , Term,  19.  . 

APPELLANT'S  PAPER-BOOK. 

[The  rules  of  court  do  not  require  this  heading  but  it  seems  to 
be  proper  practice  to  insert  it  It  is  the  beginning  of  the  paper- 
book  proper.  If  any  of  the  parties  have  died  since  verdict  or  judg- 
ment, the  names  of  the  substituted  parties  should  be  inserted  above 
in  the  same  order  in  which  the  names  of  the  original  parties  appear 
in  the  docket  of  the  court  below.] 

I.     (a)  NAMES  OF  PARTIES  AND   (b)  FORM  OF 
ACTION. 

(a)  Names  of  Parties. 

(Plaintiff's  Name  Here.) 

vs. 
(Defendant's  Name  Here.) 

Appellant  [or  as  the  case  may  be.] 

(b)  Form  of  Action. 

Trespass  [or  as  the  case  may  be.] 

[The  rules  of  court  require  the  names  of  all  the  parties  as  they 
stood  on  the  record  of  the  court  below  "at  the  time  of  the  trial," 


Docket  Entries — Abstract  of  Proceedings 
2  Certificate  of  Amount  in  Controversy. 

where  the  appeal  is  from  a  judgment  on  a  verdict,  or  "at  the  time 
of  the  entry  of  the  judgment,"  where  the  appeal  is  from  a  final 
judgment  at  law  in  the  common  pleas  not  founded  upon  a  ver- 
dict, or  a  case-stated,  with  the  addition  of  the  word  "Appel- 
lant," after  the  name  of  the  party  taking  the  appeal,  in  all  cases, 
and  the  form  of  the  action.  Supreme  Court  Rules  29-30;  Supe- 
rior Court  Rules  17-18;  §§190-192,  above.] 

[Parties  substituted  after  trial  or  judgment  should  not  be  in- 
serted here.] 

II.  DOCKET  ENTRIES. 

[Copy  the  docket  entries  verbatim.] 

III.  ABSTRACT  OF  PROCEEDINGS. 

[All  that  is  required  or  proper  is  a  general  statement  of  the 
pleadings  "showing  the  issue,  and  how  it  was  made,"  not  the 
judgments,  facts,  details  or  conclusions,  e.  g. :] 

Plaintiff's  statement  alleged  personal  injuries  caused  to 
plaintiff  [or  as  the  case  may  be]  by  defendant's  negligence, 
Defendant  pleaded  not  guilty. 

[or]  Plaintiff's  statement  alleged  [state  in  a  few  lines  as 
briefly  as  possible].  Affidavit  of  defense  filed.  Rule  for 
judgment  for  want  of  sufficient  affidavit  of  defense. 

IV.  CERTIFICATE    OF    AMOUNT    IN    CONTRO- 

VERSY. 

I  hereby  certify  that  the  value  of  the  land  [or  of  the  in- 
terest, or  of  the  property]  really  in  controversy  in  the 
above  case  tried  before  me  is  greater  than  fifteen  hundred 

dollars. 

> 

Judge. 

[To  be  filed  where  the  amount  exceeds  $1500,  on  appeal  to  the 
Supreme  Court  in  mandamus  proceedings,  in  actions  of  eject- 


Statement  of  Questions  Involved. 


ment,  either  legal  or  equitable,  and  in  all  other  actions  or  issues  in 
the  common  pleas  or  in  the  orphans'  court,  which  involve  the  pos- 
session of,  or  title  to  real  property,  or  chattels,  real  or  personal. 
Act  of  May  5,  1899,  §117  (A),  above;  Supreme  Court  Rule  23, 
§117  (B),  above.] 

V.     STATEMENT  OF  QUESTIONS  INVOLVED. 

[The  following  are  inserted  by  way  of  illustration:] 

1 i )  Negligence  of  Employer  by  putting  work  in  charge 
of  incompetent  superintendent.    See  Assignments  of  Error 
1-3,  inclusive,  pages 

(2)  Contributory   Negligence   of   plaintiff   by   disobe- 
dience of  orders.    See  Assignments  of  Error  4-6,  inclusive, 
pages  

[The  statement  of  the  question  involved  is  designed  to  enable 
the  court  to  obtain  an  immediate  view  of  the  nature  of  the  con- 
troversy. It  must  state  the  question  or  questions  in  the  briefest 
and  most  general  terms,  without  names,  dates,  amounts,  or  par- 
ticulars of  any  kind  whatever.  It  should  not  ordinarily  exceed 
ten-  lines,  and  must  not,  under  any  circumstances,  exceed  half  a 
page.  This  rule  is  to  be  regarded  as  in  the  highest  degree  man- 
datory and  admitting  of  no  exception.  Supreme  Court  Rule,  34 ; 
Superior  Court  Rule  23;  §196,  above.] 

[Statement  should  include  any  question  which,  though  unrelated 
to  main  matter  for  decision,  is  sufficiently  important  to  be  assigned 
for  error:  Willock  v.  R.  R.,  229  Pa.  526,  530  (1911) ;  Smith  v. 
R.  R.,  232  Pa.  456,  (1911)-] 

[The  reference  to  the  assignments  of  error  is  not  required  by 
rules  of  court  but  is  suggested  as  good  practice.] 

[The  following  examples  were  prepared  by  Mr.  Chief  Justice 
Mitchell,  when  the  rule  was  first  adopted,  for  the  purpose  of  illus- 
trating the  rule :] 

(a)  Question  of  Construction  and  Administration  of  Trust. 
Testator  devised  to  A  in  trust  for  maintenance  of  B  and  his  chil- 
dren, with  proviso  that  trustee  should  not  be  accountable  for  prin- 
cipal paid  to  B  in  his  lifetime.  After  B's  death  trustee's  account 
showed  payment  of  entire  personal  estate  to  B.  Court  refused  to 

[513] 
33 


Statement  of  Questions  Involved. 


surcharge.       Children,    appellants,    claim    trust    was    for    main- 
tenance and  payments  improper  (Beaumont's  Estate  195  Pa.  i). 

(b)  Verbal  Guaranty  of  Mortgage.   In  assumpsit  against  bank- 
ers on  alleged  verbal  guaranty  of  Kansas  mortgages  sold  to  plain- 
tiff, it  appeared  that  the  mortgages  became  due  by  default,  but  the 
plaintiff  failed  to  show  that  he  had  tried  to  collect  the  debt  from 
the  land  or  the  debtor  within  six  years,  or  that  an  effort  to  do  so 
would  have  been  useless.    Court  non-suited  (Button  v.  Pyle,  195 
Pa.  8). 

(c)  Agreement  of  Separation.    Husband  and  wife  separated  by 
agreement,  on  terms  dictated  by  the  wife.     On  husband's  death 
some  years  later,  his  estate  was  found  to  be  unexpectedly  large. 
Court  held  that,  in  the  absence  of  any  affirmative  evidence  of 
fraud,    coercion   or    concealment,    the    agreement    was    binding 
(Franks's  Estate,  195  Pa.  26). 

(d)  Costs  in  Equity,  and  the  power  of  the  court  to  control  the 
amount  and  the  payment  (Penna.  Co.  v.  Bank,  195  Pa.  34). 

(e)  Liability  of  Assignor  of  Stocks  on  Implied  Warranty  of 
Title.      Plaintiff  corporation  issued  certificates  for  shares  of  its 
own  stock  to  B  on  forged  power  of  attorney ;  B  transferred  cer- 
tificate to  defendants  as  collateral   for  his  note;   subsequently 
plaintiff  bought  the  note  and  collateral  from  defendants  and  on 
discovery  of  the  forgery  brought  suit  in  assumpsit.     Court  non- 
suited (Philada.  Bank  v.  Smith,  195  Pa.  38). 

(f )  Trade  Libel    by  words  charged  in  the  inducement  to  be  in- 
jurious to  plaintiff's  business.    Demurrer  on  the  ground  of  privi- 
leged communication  not  sustainable  where  statement  avers  mal- 
ice (Mclntyre  v.  Weinert,  195  Pa.  52). 

(g)  Liability  as  General  Partners  of  Members  of  Limited  Part- 
nership whose  certificate  fails  to  comply  with  the  requirements  of 
the  statute  by  stating  the  facts  accurately   (Lee  &  Bacchus  v. 
Burnley,  195  Pa.  58). 

(h)  Liability  of  Partnership  on  Judgment  Confessed  by  One 
Partner  in  Firm  Name  for  Prior  Individual  Debt.  Question  ( I ) 
of  fact  as  to  assumption  of  the  debt  by  the  firm;  and  (2)  of  ef- 
fect of  judgment  so  confessed  (Adams  v.  Leeds  Co.,  195  Pa. 
70). 


History  of  Case — Charge  of  Court. 


(i)  Bill  in  Equity  by  Stockholder  to  enforce  corporate  rights. 
Requisites  of  such  bill  when  demurred  to.  Railroad  lease  con- 
taining arbitration  clause,  etc.,  attacked  by  shareholder.  Question 
of  implied  fraud,  laches,  etc.  (Wolf  v.  R.  R.  Co.,  195  Pa.  91.) 

(j)  Loss  of  Earning  Power  as  an  element  in  measuring  dam- 
ages and  as  affecting  the  profits  of  business  in  action  for  per- 
sonal injuries  by  negligence.  (Wallace  v.  R.  R.  Co.,  195  Pa.  127.) 

VI.  HISTORY  OF  CASE. 

[The  history  of  the  case  must  contain  a  closely  condensed 
statement  of  all  the  facts  of  which  a  knowledge  may  be  necessary 
in  order  to  determine  the  points  in  controversy  here,  but  must  not 
contain  any  argument  or  any  portion  of  the  testimony.  Supreme 
Court  Rule  35;  Superior  Court  Rule  24;  §197,  above.] 

[If  affidavit  of  defense  does  not  go  to  merits  but  only  to  suffici- 
ency of  statement,  facts  not  appearing  in  statement  should  not  be 
set  forth  in  history  of  case:  See  §197,  note  (i)  (e).] 

[The  history  of  the  case  should  make  no  statements  not  justi- 
fied by  the  evidence :  Mr.  Justice  Brown  in  Levin  v.  Traction  Co., 
194  Pa.  156,  157,  1899.] 

VII.  (a)  CHARGE  OF  COURT,  (b),  (c)  POINTS  AND 

ANSWERS. 

(a)  The  Charge  of  the  Court. 

[The  following  is  inserted  by  way  of  illustration:] 

JUDGE  ENDLICH  charged  the  jury  as  follows: 

Gentlemen  of  the  Jury:     Although  the  trial  of  this  case 

*****  ****** 

In  connection  with  this  question  of  the  value  of  the  services, 
I  want  to  say  to  you,  that  the  plaintiff  makes  no  claim,  and, 
of  course,  cannot  recover  for  any  services  rendered  before  the 
first  Monday  of  January,  1883.  For,  whatever  services  he 
performed  in  1882,  he  was  paid  by  his  salary  as  County  Solici- 
tor. And,  if  it  is  true,  as  claimed  by  the  defendant,  that  the 
bulk  of  the  work,  or  any  part  of  the  work,  in  the  proceedings 
to  obtain  this  credit  was  done  by  the  plaintiff  during-  1882,  so 


\ 


Charge  of  Court. 


that,  under  the  new  contract  (if  there  was  any),  he  had  the 
benefit  of  work  he  had  been  paid  for  doing — then  that  circum- 
stance may  be  considered  by  the  jury  as  bearing  upon  the 
quantity  and  value  of  the  services  for  which  this  suit  is 
brought. 

Now,  gentlemen,  I  think  I  have  said  everything  to  you  I 
need  say.  I  will  repeat  that  [the  questions  for  your  deter- 
mination are: 

First.  Has  the  plaintiff  shown  that  in  1883  a  new  contract 
was  made  between  these  parties,  which  they  intended  to  be  the 
basis  of  all  future  services  and  compensation? 

If  he  has  not  so  shown,  you  will  return  your  verdict  for 
defendant. 

If  he  has,  and  only  then,  you  will  inquire : 

Second.  What  sum  fairly  represents  the  value  of  plaintiff's 
services  rendered  after  1882,  in  obtaining  the  credit  of  $20,- 
823-50.]  5 

To  that  sum  you  will  then  calculate  and  add  interest  from 
June  1 8,  1887,  and  for  the  aggregate  return  your  verdict  for 
plaintiff. 

(Exception  noted  for  both  plaintiff  and  defendant  before 
verdict,  and  trial  judge. requested  to  reduce  the  charge  to 
writing  and  file  it  of  record.  See  page  ...  .a,  for  certificate 
of  stenographer  and  judge  [or  bill  of  exception,  as  the  case 
may  be].) 

[The  case  used  to  illustrate  these  forms  has  been  modified 
slightly  to  suit  the  purposes  of  the  text.] 

[The  parts  of  the  charge  assigned  as  error  must  be  enclosed  in 
brackets  in  the  printed  charge  with  the  number  of  the  assignment 
noted.  Supreme  Court  Rule  27;  Superior  Court  Rule  15;  §186, 
above.] 

[The  numeral  must  be  inserted  after  the  bracket,  corresponding 
with  the  number  of  the  assignment.  The  number  of  assignment 
may  not  be  indicated  by  reference  to  marginal-  or  foot-notes: 
Oral  construction  of  Rule  by  Supreme  Court,  Jan.,  1912.] 


Plaintiff's  Points. 


[A  good  form  seems  to  be  to  have  the  required  brackets  set 
in  bold-face  type.  The  use  of  small  figures  as  exponents  is  good 
practice.  They  should  be  inserted  after  the  last  bracket,  not  be- 
fore the  first  one.] 

[Record  must  show  exception  to  charge  before  verdict  and  re- 
quest that  charge  be  reduced  to  writing  and  filed  of  record :  Curtis 
v.  Winston,  186  Pa.  492;  Linderman  v.  Hershberger,  47  Pa. 
Super.  308;  Brown  v.  Boro.,  Id.  413,  (1911).] 

[The  fact  that  exceptions  were  noted  to  the  charge  should  also 
appear  at  the  end  thereof,  if  no  formal  bill  of  exceptions  was 
sealed.  See  §§155  and  162,  above.  A  statement  as  above,  with 
reference  to  the  certificate,  etc.,  by  page,  in  the  appendix,  seems 
sufficient.  ] 

[The  name  of  the  judge  is  required  to  be  inserted:  Supreme 
Court  Rule  29;  Superior  Court  Rule  17,  §190,  above.] 

(b)     The  Plaintiff's  Points  and  Answers. 
The  Court  is  respectfully  requested  to  charge : 
[Inserted  by  way  of  illustration.] 

i.  If  the  jury  believe,  from  the  evidence,  that  by  reason 
of  any  contract  or  agreement  entered  into  between  the 
plaintiff  and  the  County  Commissioners,  after  the  first 
Monday  of  January,  1883,  he  undertook,  with  their  knowl- 
edge, approval,  and  consent,  the  collection  of  a  claim  of  the 
County  of  Lancaster  against  the  Commonwealth,  and  by 
his  labors,  rendered  subsequently  to  that  date,  secured  the 
collection  of  said  claim,  the  verdict  must  be  for  the  plaintiff 
for  such  amount  as  the  jury  believe  from  the  evidence  his 
services  were  worth  to  the  County  of  Lancaster,  with  in- 
terest from  June  20,  1887.  Answer.  Affirmed. 

[2.  If  the  jury  believe,  that  after  the  expiration  of  plain- 
tiff's term  of  office  as  Solicitor  for  the  County  of  Lancaster, 
a  new  agreement  was  entered  into  between  him  and  the 
County  Commissioners  and  that  the  services  rendered  by 
him  for  which  he  seeks  compensation  were  rendered  exclu- 
sively under  the  new  agreement,  the  verdict  of  the  jury 


8  Defendant's  Points — Verdict  and  Judgment. 

must  be  in  his  favor  for  such  sum  as  under  the  evidence  will 
properly  compensate  him  for  such  service,  with  interest 
from  June  20,  1887.  Answer.  Affirmed.]  13 

(c)     The  Defendant's  Points  and  Answers. 

The  Court  is  respectfully  requested  to  charge: 

i.  The  contract  of  June  28,  1882,  given  in  evidence,  was 
contrary  to  public  policy  and  void,  and  there  can  be  no  re- 
covery by  the  plaintiff  in  this  action  for  services  rendered 
under  or  in  pursuance  of  said  contract,  whether  said  ser- 
vices were  rendered  while  the  plaintiff  held  the  office  of 
Solicitor  of  Lancaster  County,  or  after  the  expiration  of  his 
term  of  office.  Answer.  Affirmed. 

[2.  There  is  no  testimony  in  the  case  of  a  contract  be- 
tween the  plaintiff  and  the  defendant  other  than  that  of 
June  28,  1882,  and  all  services  rendered  by  the  plaintiff 
must  be  regarded  as  having  been  rendered  under  the  said 
contract.  Answer.  Reserved.]  6 

[3.  Under  all  the  testimony  in  the  case  the  verdict  must 
be  for  the  defendant.  Answer.  Refused.]  14 

(Exceptions  by to  answers  to 's 

points  before  verdict.) 

[The  brackets  and  number  of  assignment  are  not  required  by 
rules  of  court  to  be  given  with  the  points  and  answers,  but  it 
seems  to  be  good  practice  to  insert  them.] 

VIII.     VERDICT  AND  JUDGMENT. 

On 19. .  .,  there  was  a  verdict  for 

for  $ [or  as  the  case  may  be]  and  judgment  was 

entered  thereon 19. ... 

[The  rules  of  court  do  not  require  the  dates  to  be  given,  but  it 
is  better  practice  to  give  them.  The  right  of  appeal  is  limited  to 
six  months  from  the  entry  of  judgment  by  Act  May  19,  1897,  P. 
L.  67,  §126,  above;  and  not  from  date  of  verdict:  See  §126,  note 
(5)  (a).] 


Assignments  of  Error. 


IX.    ASSIGNMENTS  OF  ERROR. 

[Prior  to  the  legislation  providing  for  the  appointment  of 
court  stenographers,  a  formal  bill  of  exceptions  was  the  only 
method  by  which  errors  committed  on  the  trial  of  a  case  could  be 
brought  before  the  appellate  court  for  review.  This  legislation 
changed  the  practice  by  substituting  for  the  bill  of  exception  a 
certified  transcript  of  the  stenographer's  notes  of  the  testimony. 
See  §161,  note  (i).  By  §4  of  the  Act  of  May  n,  1911,  the  latest 
legislation  on  this  subject,  §155,  above,  a  certified  transcript  of 
the  stenographer's  notes  is  "part  of  said  record  for  purposes  of 
review  on  appeal."  By  §6,  Act  1911,  §162,  above,  "whensoever 
the  decision  of  a  court  of  record  shall  appear  in  the  proceedings 
of  a  case,  it  shall  not  be  necessary,  for  the  purpose  of  a  review  of 
that  decision,  to  take  any  exception  thereto."  As  this  act  has  not 
been  construed  by  the  courts,  and  as  there  are  a  few  courts  which 
still  prefer  the  formal  bills  of  exceptions,  it  is  safer  practice  to 
still  take  exceptions  and  seal  bills  where  required  by  rule  of  court 
or  by  the  practice  in  any  particular  court.] 

[When  the  error  assigned  is  to  the  admission  or  rejection  of 
evidence,  or  to  the  striking  out  or  refusal  to  strike  out  evidence, 
the  specification  must  quote  the  questions  or  offers,  the  ruling  of 
the  court  thereon,  and  the  evidence  admitted,  or  rejected,  stricken 
out,  or  which  the  court  refuses  to  strike  out,  together  with  a 
reference  to  the  page  of  the  paper-book  or  appendix  where  the 
matter  may  be  found  in  its  regular  order  in  the  printed  evidence 
or  notes  of  trial.  When  the  error  alleged  is  to  the  admission  or 
rejection  of  a  writing,  a  full  copy  of  the  writing  must  be  printed 
in  the  paper-book.  Any  assignment  of  error  not  according  to  this 
and  the  rule  immediately  preceding  [see  under  5th  assignment,  be- 
low] will  be  disregarded.  Supreme  Court  Rule  28;  Superior 
Court  Rule  16;  §§187,  198,  above.] 

[When  in  the  printed  copy  of  the  assignments  of  error  or  in 
the  printed  argument  reference  is  made  to  the  testimony,  to  the 
charge  of  the  court,  or  to  other  matters  appearing  upon  the  record, 
the  pages  must  be  stated  where  the  matter  referred  to  is  to  be 


[519] 


lo  Assignments  of  Error. 

found  in  the  paper-book  or  appendix.  Supreme  Court  Rule  39; 
Superior  Court  Rule  28;  §198,  above.] 

[Each  error  relied  on  must  be  specified  particularly  and  by  itself. 
If  any  specification  embrace  more  than  one  point  or  refer  to  more 
than  one  bill  of  exceptions,  or  raise  more  than  one  distinct  ques- 
tion, it  shall  be  considered  waiver  of  all  the  errors  so  alleged.  Su- 
preme Court  Rule  26;  Superior  Court  Rule  14,  §185.] 

[It  is  improper  practice  to  raise  same  question  by  different 
assignments  of  error:  See  §185,  note  (2)  (c)  ;  or  to  include  more 
than  one  bill  of  exception  in  one  assignment,  even  though  offers 
were  similar:  See  §185,  note  (4).] 

[To  Admission  or  Rejection  of  Evidence  of  Witnesses.] 

1.  The  court  below  erred  in  over-ruling  (or  sustaining) 

's  objection  to  the  question  of 's 

counsel,  and  in  admitting  (or  rejecting)  the  testimony,  as 
follows  (page  . .  .  .a)  : 

Plaintiff's  [or  defendant's]  witness ,  being  on  the 

stand,  and  having  testified  on  examination  in  chief  [or 
as  the  case  may  be]  [state  briefly]  was  asked:  [Quote 
question,  objection,  ruling  of  court,  exception,  answer  ad- 
mitted, and  any  portion  of  the  context  necessary  to  an  un- 
derstanding of  the  question  raised  by  the  assignment  or 
necessary  to  make  the  assignment  self-sustaining]. 

2.  The  court  below  erred  in  sustaining  objection  to  the 
following  offer  (page  . . .  .a)  : 

Plaintiff's  (or  defendant's)  witness ,  being  on  the 

stand,  the  following  offer  and  ruling  occurred : 

[Quote  offer,  objection,  ruling  of  court  and  exception.] 

[If  the  evidence  is  objected  to  because  of  the  pleadings,  the 
ground  for  this  objection  should  be  laid  by  brief  statement  of  the 
point  (unless  it  appears  in  the  objection,  as  it  should)  with  page 
reference  to  the  pleadings,  before  quoting  the  record.] 

[If  objection  is  made  to  competency  of  witness,  e.  g.,  as  to  value 

[520] 


Assignments  of  Error.  n 

of  land,  his  preliminary  examination  on  his  voir  dire,  as  well  as 
his  answer  objected  to,  should  be  given  in  the  assignment.] 

[A  general  statement  of  the  rule  is  that  the  assignment  shall  be 
self-supporting.] 

[The  pages  must  be  stated  where  the  matter  referred  to  in  the 
assignment  is  to  be  found  in  the  paper-book  or  appendix.  Su- 
preme Court  Rule  39;  Superior  Court  Rule  28;  §198,  above.] 

[To  Admission  or  Rejection  of  Documentary  Evidence.] 

3.  The  court  below  erred  in  over-ruling  [or  sustaining] 
objection  to  the  admission  in  evidence  of  the   [documentary 
evidence,  briefly  describing  it],  and  in  admitting  [or  rejecting] 
it,  as  follows  (page a.) : 

[Quote  offer,  objection,  ruling  of  court,  exception  and 
paper  admitted  [or  rejected]  in  full,  together  with  any  por- 
tion of  the  context,  as  in  the  first  preceding  assignment.  A 
document  need  not  be  copied  verbatim,  if  lengthy,  but  may 
be  referred  to  by  reference  to  the  page  of  the  appendix 
where  printed.  It  is  essential  that  it  be  printed  somewhere 
in  the  paper-book.  §187  note  (2)  ;  §198]. 

[To  Refusal  to  Withdraw  Juror  and  Continue  Cas%e.] 

4.  The  court  below  erred  in  refusing  the  motion  to 

withdraw  a  juror  and  continue  the  case  at 's  cost, 

because  of  the  remarks  of 's  counsel  in  his  address 

to  the  jury  [or  because  of  the  testimony  of ,  one 

of 's  witnesses]  said  remarks  of  counsel  [or  testi- 
mony], motion,  ruling  of  court  thereon  and  exception  be- 
ing as  follows  (page  . .  .  .a)  :     [Insert  from  record  petition 
with  affidavit  or  agreement  of  counsel,  or  action  of  the 
stenographer  or  the  court,  making  the  remark  a  part  of  the 
record]. 

Counsel  for moves  the  court  to  withdraw  a  juror 

[521] 


12  Assignments  of  Error. 

and  continue  the  case  at 's  cost  for  the  improper 

remarks  of 's  counsel  [or  as  the  case  may  be] . 

The  motion  to  withdraw  a  juror  is  overruled.  Excep- 
tion. 

[Where  the  cause  of  surprise  is  a  remark  or  conduct  of 
counsel  or  witness  which  does  not  appear  on  the  record,  it 
must  be  made  a  part  of  the  record  by  petition  with  affidavit 
of  parties  who  heard  the  remark,  by  agreement  of  counsel 
or  by  the  action  of  the  stenographer  or  the  court.  See  cases 
in  §228  note  (16)  and  note  (29)  (i)  and  (k).  See  also  Act 
May  n,  1911,  P.  L.  279,  §§155  and  162,  above.] 

[To  Portion  of  Charge  of  Court] 

5.  The  court  below  erred  in  instructing  the  jury  as  follows 
(page )  : 

[Quote  verbatim  portion  of  charge  assigned  for  error, 
together  with  the  following  exception:] 

Exception  noted  for  both  plaintiff  and  defendant  [or  as 
the  case  may  be]  before  verdict  (page  ....). 

[or]  Exception  noted  before  verdict  by  

to  portion  of  charge  referring  to  [state  as  in  exception, 
where  specific  exception  is  required  on  the  trial  in  the  court 
below]  (page  ....). 

[When  the  error  assigned  is  to  the  charge  of  the  court,  or  to 
answer  to  points,  the  part  of  the  charge,  or  the  points  and  answers 
referred  to,  must  be  quoted  ipsissimis  verbis  in  the  specifications, 
and  the  parts  of  the  charge  assigned  as  error  shall  be  enclosed  in 
brackets  in  the  printed  charge  with  the  number  of  the  assignment 
noted.  Supreme  Court  Rule  27;  Superior  Court  Rule  15;  §186.] 

[Record  must  show  exception  to  charge  before  verdict  and  re- 
quest that  charge  be  reduced  to  writing  and  filed  of  record :  Curtis 
v.  Winston,  186  Pa.  492;  Linderman  v.  Hershberger,  47  Pa. 
Super.  308;  Brown  v.  Boro.,  Id.  413,  (1911).] 

[Excerpts  from  the  charge,  or  isolated  sentences,  wrenched 
from  their  position  and  connection,  and  not  including  what  was 

[522] 


Assignments  of  Error.  13 

said  by  way  of  qualification,  immediately  preceding  or  following 
the  language  quoted,  may  not  be  assigned  as  error:  See  §186,  note 
(i)  (c)  and  (d),  above.] 

[To  Inadequacy  of  Whole  Charge.] 

6.  The  charge  of  the  court  as  a  whole  was  inadequate  and 
misleading.     The  court  charged  the  jury  as  follows : 

[Quote  whole  charge  and  exception  verbatim,  as  in  pre- 
ceding assignment.] 

[When  it  is  alleged  that  whole  charge  is  unfair,  assignment 
must  set  forth  charge  in  full,  even  though  it  appear  elsewhere  in 
the  paper-book:  see  §186,  note  (i)  (e)  and  (f).] 

[To  Answers  to  Points.] 

7.  The  court  below  erred  in  its  answer  to  [or  in  affirming 

or  refusing]  the  ....  point  for  charge  submitted  by 

the  point  and  answer  and  exception  thereto  being  as  fol- 
lows (page  ....): 

[Quote  point  and  answer  verbatim;  also  exception  as  fol- 
lows :] 

Exception  by  to  answers  to  's 

points  for  charge  before  verdict  (page  ....). 

[Assignments  to  answer  to  points  will  not  be  considered  where 
they  fail  to  show  exceptions  taken  and  (or)  bills  sealed:  Sober  v. 
Mooney,  48  Pa.  Super.  92,  96,  (1911).] 

[To  Discharge  of  Rule  to  Take  Off  Non-Suit.] 

8.  The  court  below  erred  in  discharging  defendant's  rule 
[or  motion]   to  show  cause  why  non-suit  should  not  be 
taken  off,  and  in  not  taking  off  the  non-suit,  as  follows 
(page a): 

[Quote  rule  or  motion,  order  of  court  and  exception  ver- 
batim.] 

[Assignment  of  error  does  not  lie  to  entry  of  non-suit  or  refusal 
to  enter  non-suit  as  these  are  matters  of  discretion  with  the  trial 

[523] 


14  Assignments  of  Error. 

judge;  error  lies  only  to  refusal  to  take  off  non-suit.     See  §82, 
and  notes.] 

[To  Discharge  of  Rule  for  New  Trial.] 

9.  The  court  below  erred  in  discharging  rule  [or  mo- 
tion] for  new  trial,  the  rule  [or  motion],  reasons  for  a  new 
trial,  order  of  the  court  and  exceptions  being  as  follows 
(page  ....a): 

[Quote  rule  [or  motion],  reasons,  order  and  exception 
verbatim.] 

[Discharge  of  a  motion  to  strike  off  a  refusal  to  grant  a  new 
trial  may  be  assigned  for  error :  Senft  v.  Mcllvain,  43  Pa.  Super. 
518,  523,  1910;  but  refusal  to  grant  new  trial,  being  matter  of 
discretion,  will  not  be  reviewed  except  in  clear  case  of  abuse  of 
discretion.  See  §228,  notes  (9)  and  (24)  (p2).  It  is  better  prac- 
tice to  assign  for  error  the  discharge  of  the  rule  or  motion  for 
new  trial.] 

[Assignment  must  set  forth  motion,  reasons  assigned  and  order 
of  court:  Peoples  Nat.  Bank  v.  Hazard,  231  Pa.  552,  554,  (1911).] 

[Assignment  that  court  erred  in  refusing  new  trial  for  specific 
reasons  stated  is  good  as  it  assigns  but  a  single  exception:  Mix 
v.  North  American  Co.,  209  Pa.  636,  641  (1904)  ;  or  there  may  be 
an  assignment  for  each  reason  stated:  Mr.  Justice  Brown,  Id.] 

[To  Entry  of  Judgment  n.  o.  v.] 

10.  The  court  below  erred  in  entering  [or  refusing  to 

enter]  judgment  in  favor  of ,  non  obstante  vere- 

dicto,  as  follows  (page a)  : 

[Quote  motion,  reasons,  order  and  exception  verba- 
tim.] 

[See  Act  May  n,  1911,  §162,  above,  dispensing  with  excep- 
tions.] 

[Assignment  to  refusal  to  enter  judgment  n.o.v.  will  not  be  con- 
sidered where  no  exception  is  shown  on  record:  See  §88,  note 
(i)  (a).] 

[524] 


Assignments  of  Error — Argument.  15 

[To  Judgment  for  Insufficient  Affidavit  of  Defense.] 

11.  The  court  below  erred  in  discharging  [or  making 
absolute]  rule  for  want  of  a  sufficient  affidavit  of  defense, 
and  in  entering  judgment,  as  follows  (page  ....): 

[Quote  rule,  or  motion,  order  of  court  and  exception 
verbatim.] 

[In  Certiorari  Proceedings.] 

12.  The  court  below  erred  in  entering  order  [decree,  or 
judgment]  as  follows : 

[Quote  order,  decree  or  judgment  verbatim.] 
[Where  appeal  is  treated  as  certiorari,  the  entire  record  is 
brought  up,  without  exceptions  having  been  taken ;  but  only  regu- 
larity of  record,  not  evidence,  is  considered:  See  §182,  note  (4).] 
[Where  new  jurisdiction  is  created  by  statute  and  proceed- 
ing is  different  from  common  law,  certiorari  is  proper  remedy: 
See  §182,  note  (4).] 

[In  Appeals  from  Superior  Court.] 

For  Forms  for  Assignments  of  Error,  see  §188,  above. 

X.     BRIEF  OF  ARGUMENT. 

[The  following  is  inserted  by  way  of  illustration:] 

I.    ORIGINAL  CONTRACT  is  ULTRA  VIRES. 

II.    ALLEGED  NEW  CONTRACT,  MERELY  ITERATION  OF  VOID  CON- 
TRACT  (page ). 

III.  IF  EVIDENCE  OF  NEW  CONTRACT  WAS  SUFFICIENT  FOR  JURY, 
YET  CONTRADICTIONS  OF  PREVIOUS  TESTIMONY  ARE  SUCH 
AS  TO  PREVENT  RECOVERY  (page ). 

i.     Original  Contract  is  Ultra  Vires. 

When  plaintiff's  claim  for  services  against  defendant  county 
was  first  before  this  court  it  was  established  that  plaintiff's 
original  contract,  evidenced  by  the  resolution  of  the  Board  of 
Commissioners,  adopted  June  28,  1882,  was  against  public 
policy,  and  therefore  void. 

[525] 


1 6  Argument. 

The  legal  principles  involved  in  the  decision  are  stated 
as  follows  in  the  syllabus  of  the  case  of  Lancaster  County 
v.  Fulton,  128  Pa.  48  (1889): 

"The  prosecution  before  the  proper  officers  of  the 
commonwealth  of  a  claim  by  a  county  to  an  allowance 
for  over-payments  of  taxes  into  the  state  treasury,  is 
within  the  sphere  of  a  county  solicitor's  duties,  as  de- 
fined by  a  statute  providing  that  he  shall  be  the  legal 
adviser  of  the  County  Commissioners  and  shall  re- 
present them  in  all  proceedings  in  law  or  equity, 
wherein  the  county  is  a  party  or  has  any  interest. 

"A  contract,  made  by  the  commissioners  of  a  coun- 
ty, to  give  to  the  county  solicitor,  whose  salary  is 
fixed  by  law,  an  additional  compensation  for  services 
to  be  rendered  by  him,  lying  within  the  sphere  of  his 
official  duties  as  prescribed  by  a  statute,  is  ultra  vires. 
Being,  in  its  effect,  evasive,  and  subversive  of  law  and 
contrary  to  public  policy,  it  is  void  irrespective  of  in- 
tent, and  is  therefore,  incapable  of  ratification  after 
the  expiration  of  the  solicitor's  term. 

"In  an  action  to  recover  for  services  under  such  a 
contract,  the  contract  itself  being  declared  on  and  the 
evidence  showing  that  the  services  of  the  plaintiff 
were  all  rendered  under  it,  no  recovery  can  be  had, 
notwithstanding  that  these  services  were  not  complet- 
ed during  the  plaintiff's  official  term,  and  were  prin- 
cipally rendered  after  its  expiration,  with  the  knowl- 
edge and  assent  of  the  county  commissioners." 

[Notes  on  Brief  of  Argument.] 

[  ( i )  General  Requirements.  The  brief  of  argument  must 
contain  a  clear  statement  of  the  points  on  which  the  party  relies, 
with  such  reasons  and  arguments  as  he  may  see  proper  to  add,  to- 
gether with  all  the  authorities  which  he  thinks  pertinent.  Where 

[526] 


Argument.  17 

the  error  assigned  is  to  the  finding  of  fact  by  an  auditor  or  master, 
[or  the  evidence,  if  relied  upon  for  other  reasons]  the  printed  ar- 
gument shall  contain  a  synopsis  of  all  the  evidence  bearing  upon 
such  disputed  question  of  fact  with  reference  to  the  page  or  pages 
of  the  appendix  of  the  paper-book  where  such  evidence  may  be 
found  in  extenso.  Supreme  Court  Rule  36 ;  Superior  Court  Rule 
25;  §J99>  above.] 

[If  the  evidence  is  not  too  voluminous  it  is  well  to  insert  it  ver- 
batim in  the  argument:  See  §190,  note  (12)  (n).] 

[The  argument  should  be  divided  so  as  to  apply  separately  to 
different  specifications  of  error;  this  is. much  more  effective  than 
treating  whole  subject  as  general  theme.  Judge  Orlady  in  Eden- 
burg  Boro.  Poor  Dist  v.  Poor  Dist.,  5  Pa.  Super.  516,  522 
(1897).] 

[(2)  Citation  of  Authorities.  When  authorities  are  cited  the 
principle  intended  to  be  sustained  by  each  case  must  be  stated. 
Appellate  court  cases  decided  since  the  commencement  of  the  State 
Reports  must  be  cited  by  the  volume  of  the  official  reports.  Wher- 
ever decisions  of  said  courts  are  cited  from  legal  periodicals,  they 
must  be  accompanied  by  the  certificate  of  counsel,  inserted  at  the 
end  of  the  argument  but  not  in  the  body  thereof,  that  said  cases 
have  not  been  reported  in  the  official  reports.  Whenever  a  statute 
is  cited,  the  reference  shall  be  to  the  pamphlet  laws  and  also  to  a 
standard  digest  in  which  it  may  be  found.  Supreme  Court  Rule 
37 ;  Superior  Court  Rule  26 ;  §200,  above.] 

["In  citing  reports,  the  names  of  the  parties  and  the  page  of  the 
book  where  the  case  begins  should  be  carefully  and  accurately 
given,  and  not  the  page  merely  where  the  principle  cited  is  to  be 
found":  Mr.  Chief  Justice  Thompson  in  Burkholder  v.  Stahl,  58 
Pa.  371,379  (1868).] 

[In  citing  general  legal  text-books  the  edition  should  always  be 
given,  with  the  year  when  published.] 

[The  certificate  required  by  the  3d  paragraph  above  is  as  fol- 
lows:] 

I  certify  that  Pennsylvania  appellate  court  cases  cited  from  re- 
ports other  than  the  State  Reports  are  not  reported  therein. 


[527] 


Appendix.  la 

APPENDIX. 

[  (i )  When  Printed  in  Separate  Book.  If  a  paper-book 
contain  more  than  100  pages,  the  appendix  shall  be  printed  in  a 
separate  book  with  a  proper  index  thereto.  Supreme  Court  Rule 
46;  Superior  Court  Rule  35;§i89,  above.] 

[(2)  Head  Lines.  The  name  of  the  witness  or  the  char- 
acter of  the  document  shall  be  printed  at  the  top  of  each  page. 
Supreme  Court  Rule  39;  Superior  Court  Rule  28;  §189,  above.] 

[(3)  Numbering  of  Pages.  The  pages  of  the  paper-book 
shall  be  numbered  in  Arabic  figures  and  not  in  Roman  numerals, 
those  in  the  appendix  to  be  followed  by  a  small  a,  thus:  looa. 
Supreme  Court  Rule  39;  Superior  Court  Rule  28;  §189,  above.] 

The  appendix,  whether  bound  separately  or  with  the  rest  of  the 
paper-book,  must  have  a  separate  paging,  beginning  with  la  and 
not  looa,  as  used  in  the  rule  as  an  illustration:  Oral  construc- 
tion of  Rule  by  Supreme  Court,  Jan.,  1912.] 

[(4)  General  Contents.  The  appendix  shall  contain  the 
evidence,  and  the  pleadings  of  the  court  below  filed  in  the  case, 
and  copies  of  plans  or  drawings,  whenever  they  have  been  used 
in  the  court  below  and  are  necessary  for  a  correct  or  ready  under- 
standing of  the  case.  Supreme  Court  Rule  29;  Superior  Court 
Rule  17;  §190,  above.] 

[(5)  Printing  Plans  and  Drawings.  When  counsel  can 
not  agree  as  to  the  necessity  for  printing  plans  and  drawings,  the 
matter  shall  be  submitted  to  the  trial  judge,  whose  decision  shall 
be  conclusive.  Supreme  Court  Rule  24;  Superior  Court  Rule 
21 ;  §156,  above.] 

[(6)  Excluding  Part  of  the  Transcript  by  Agreement. 
The  appellants  and  appellees,  by  writing  filed  and  approved  by  the 
lower  court,  may  agree  that  any  part  of  the  evidence  appearing 
in  the  transcript  as  certified  and  filed  shall  be  considered  as  ex- 
cluded therefrom  upon  the  review  of  the  case  by  the  Supreme 
Court  or  Superior  Court;  and,  if  they  cannot  agree,  the  court 
below,  upon  motion  of  appellants  and  notice  to  appellee,  may  order 
that  any  part  or  portion  of  the  evidence  may  be  omitted  by  appel- 
lant in  printing  the  transcript  for  the  purpose  of  review  in  such 

[528] 


Argument.  2  a 

case:  Provided,  however,  That  appellees  may  themselves  print 
such  evidence,  which  printing  shall  be  at  their  own  expense,  un- 
less it  be  otherwise  ordered  by  the  appellate  court;  or  the  appel- 
late court  may  order  any  part  or  all  thereof  to  be  printed  by  ap- 
pellant, whenever  said  court  shall  deem  it  necessary  so  to  do. 
Act  May  n,  1911,  §5,  P.  L.  279;  §156,  above.] 

[On  appeal  from  order  making  assignees  of  portion  of  claim 
prior  to  verdict  equitable  plaintiffs  in  suit,  evidence  taken  on  trial 
need  not  be  printed,  as  it  is  not  necessary  to  question  involved: 
Beck  Cricket  Club,  45  Pa.  Super.  358  (1911).] 

[(7)  Evidence  not  to  be  printed  in  narrative  form.  Printing 
100  pages  of  testmony  in  narrative  form  in  small  type  has  been 
gravely  criticised  in  Herring's  Est.,  17  Pa.  Super.  530,  (19).] 

[(8)  Bracketing  Record  Assigned.  Although  it  is  not  re- 
quired by  rules  of  court,  it  is  suggested  that  the  portions  of  the 
record  assigned  for  error  be  enclosed  in  brackets,  and  properly 
numbered.  This  will  materially  aid  in  finding  the  references  from 
the  assignments  of  error,  which  are  required  by  rules  of  court. 
See  §187.  It  will  also  tend  to  accuracy  by  indicating  the  context, 
and  limiting  the  assignment  to  the  proper  parts  of  the  record.] 

[(9)    Index.        See  under  "Index,"  above,  this  section. 

IN  THE 
COURT  OF  COMMON  PLEAS 

OF  BERKS  COUNTY. 

Hugh  R.  Fulton  } 

vs.  vNo.  101,  August  Term,  1890. 

The  County  of  Lancaster,    j 

TESTIMONY. 

Before  Hon.  G.  A.  E'ndlich  and  a  jury. 

Appearances : 

Messrs.  Brown  &  Hensel  and  Ermentrout  &  Ruhl  for  the  plain- 
tiff. 

[529] 
34 


3  a  Hugh  R.  Fulton,  Examination  in  Chief. 

Messrs.  George  A.  Lance,  Hugh  M.  North,  Cyrus  Z.  Derr, 
George  F.  Baer  and  E.  K.  Martin,  for  the  defendant. 

READING,  PA.,  Wednesday,  Nov.  16,  1892. 

(The  jury  having  been  duly  empaneled,  eleven  sworn  and  one 
affirmed,  Mr.  Hensel  stated  the  case  for  the  plaintiff.) 

Hugh  R.  Fulton,  sworn : 

BY  MR.  HENSEL:  Q.  Where  do  you  live?  A.  I  reside  in  the 
City  of  Lancaster,  Pennsylvania. 

Q.     What  is  your  profession  ?    A.    Attorney-at-law. 
********  ** 

Q.  Did  you  not  have  an  interview  with  the  Board  of  County 
Commissioners  in  the  year  1883  relative  to  a  claim  which  the 
county  of  Lancaster  had  against  the  Commonwealth  ?  A.  I  had. 

Q.  What  was  the  claim?  A.  For  a  rebate  or  credit  settle- 
ment for  overpaid  taxes  on  horses  and  cattle  for  the  years  1875, 
1876  and  1877  which  the  county  had  paid  the  state  after  the  law 
was  repealed. 

Q.  What  took  place  between  you  and  the  commissioners  then 
and  there?  A.  I  stated  to  the  Board — there  was  a  full  board  in 
session — that  my  efforts  before  the  Board  of  Revenue  Commis- 
sioners of  the  Commonwealth,  and  before  the  Board  of  Public  Ac- 
counts, had  not  been  successful ;  I  stated  that  I  had  endeavored  to 
have  a  law  passed  authorizing  suits  against  the  Commonwealth  by 
counties  to  recover  this  money,  and  endeavored  to  have  another 
bill  passed  authorizing  the  Board  of  Public  Accounts  to  give  credit 
settlements  in  cases  like  ours,  but  I  failed.  I  then  told  them  that  I 
desired  to  take  in  associate  counsel ;  I  told  them  that  if  they  would 
agree  to  it,  I  would  associate  Mr.  Hensel  with  me  in  the 
prosecution  of  the  claim  against  the  Commonwealth.  They  were 
favorable  to  the  proposition,  and  asked  upon  what  terms  the  ser- 
vices of  Mr.  Hensel  could  be  procured.  I  said  to  them :  "You  pay 
me  25  per  cent,  of  the  amount  collected  from  the  Commonwealth, 
and  I  will  compensate  Mr.  Hensel ;  this  is  to  be  in  full  for  all  costs 
and  expenses,  as  well  as  all  fees" ;  this,  if  we  recovered,  and  we 
would  make  no  charge  if  nothing  was  recovered. 


[530] 


Minutes  of  Revenue  Board — A.  S.  Sassaman.  4  a 

MR.  HENSEL:  We  offer  the  minutes  of  the  Board  of  Revenue 
Commissioners  of  November  23,  1882,  for  the  purpose  of  showing 
that  the  work  done  by  Mr.  Fulton  as  County  Solicitor,  or  under 
his  contract  of  1882,  had  been  terminated  by  the  rejection  of  the 
claim  of  Lancaster  County  by  the  Board  of  Revenue  Commission- 
ers. [The  minutes  were  admitted  and  follow  here  in  the  appen- 
dix.] 

MR.  HENSEL:  We  offer  the  minutes  of  the  Board  of  Revenue 
Commissioners  of  April  29,  1884,  for  the  purpose  of  showing  the 
character  of  Mr.  Fulton's  services  to  the  county  of  Lancaster  after 
his  employment  under  the  agreement  of  June  13,  1883.  [The  min- 
utes were  admitted  and  follow  here  in  the  appendix.] 
*  ********* 

Hon.  A.  S.  Sassaman,  sworn : 

BY  MR.  RUHL  :  Q.  You  have  been  a  member  of  this  bar  how 
many  years  ?  A.  Nearly  thirty. 

Q.  You  have  heard  the  question  which  I  read  to  the  others? 
A.  Yes,  sir ;  but  I  prefer  to  have  it  repeated. 

[Q.  Assuming  a  collection  of  $20823.50  having  been  made  upon 
a  claim  ten  years'  old  when  it  was  paid,  the  same  having  been  set- 
tled against  the  claimant,  and  its  time  for  appeal  having  passed; 
four  years'  professional  labor  having  been  devoted  to  the  collec- 
tion, the  labor  involving  eight  visits  to  Harrisburg,  and  as  many 
appearances  and  arguments  before  the  Board  of  Revenue  Commis- 
sioners and  Board  of  Public  Accounts ;  and  involving  the  employ- 
ment of  additional  counsel ;  the  claim  having  been  made  against 
the  State  of  Pennsylvania  by  the  County  of  Lancaster  for  overpaid 
taxes;  what,  in  your  judgment  would  be  a  fair  compensation  for 
recovering  that  sum  to  the  attorney  who  rendered  the  services,  the 
agreement  being  that  he  should  receive  nothing  if  nothing  was 
recovered  and  he  to  bear  all  the  expenses  and  costs  of  the  collec- 
tion? 

MR.  DERR:  Objected  to. 

First.  As  not  predicated  upon  the  facts  as  they  appear  in  the 
testimony. 

[53i] 


5  a  A.  S.  Sassaman,  Examination,  Cross-examination. 

Second.  Under  the  testimony  of  the  plaintiff  he  has  set  out  an 
express  contract,  and  averred  that  in  June,  1883,  he  had  a  con- 
tract which  fixed  the  amount  and  therefore  there  is  no  room  for 
proof  as  to  the  value  of  the  services. 

Third.  The  plaintiff  cannot  recover  without  an  express  con- 
tract, and  has,  therefore,  undertaken  to  show  one,  one  of  the  terms 
which  is  that  his  compensation  should  be  25  per  cent,  of  what  re- 
covered, and,  therefore,  expert  testimony  as  to  the  value  of  the 
services  which  have  already  been  valued  by  the  parties,  is  irrele- 
vant, incompetent,  and  inadmissible. 

Objection  overruled.    Exception. 

A.     That  would  be  a  mere  contingent  claim;  well,  anywhere 
from  one-quarter  to  one-half  of  the  amount. 
Q.     25  to  50  per  cent,  of  the  amount?    A.  Yes,  sir.]  1 


xQ.  Suppose  the  liability  of  the  Commonwealth  was  admitted, 
•and  that  the  only  thing  necessary  to  have  done  was  the  making  up 
from  the  county  records  the  statements  which  showed  there  had 
been  an  overpayment,  to  what  extent,  if  any,  would  that  modify 
your  estimate?  A.  It  would  certainly  modify  the  estimate,  but 
I  would  infer  from  the  question  that  there  was  some  difficulty,  or 
it  would  have  been  paid  before. 

(Here  the  plaintiff  [or  defendant]  gave  evidence  tending  to 
prove  [specifying  the  subject  of  the  omitted  evidence  distinctly 
and  in  positive  terms:  see  Wilson  v.  Keller,  195  Pa.  98,  and  §156, 
above].  The  evidence  is  excluded  from  the  record  as  immaterial, 
by  agreement  of  counsel  [or  order  of  court,  as  the  case  may  be]. 
[Follow  with  signatures  of  counsel,  if  by  agreement,  or  signature 
of  judge,  if  otherwise].) 

Testimony  closed. 

[While  Mr was  addressing  the  jury  he  made 

use  of  the  following  language :  "This  case  is  of  too  grave  a  char- 

[532] 


Motion  to  Withdraw  Juror — Certificates  of  Proceedings.      6  a 

acter  to  justify  the  defense  set  up."    This  remark  was  objected  to 
by  Mr ,  who  moves  for  the  withdrawal  of  a  juror. 

THE  COURT:  I  do  not  think  that  was  the  kind  of  remark  to 

justify  the  withdrawal  of  a  juror.  But  I  think,  Mr , 

that  you  are  getting  very  close  to  the  line. 

The  motion  to  withdraw  a  juror  is  overruled.    Exception.]  4 

(The  charge  of  the  court,  which  here  follows  in  the  record,  will 

be  found  printed  on  pages   ;  the  points  and  answers  on 

pages ,  together  with  the  exceptions  thereto.) 

I  hereby  certify  that  the  proceedings,  evidence  and  charge  are 
contained  fully  and  accurately  in  the  notes  taken  by  me  on  the 
trial  of  the  above  cause ;  and  that  this  copy  is  a  correct  transcript 
of  the  same. 


Official  Stenographer. 

The  foregoing  record  of  the  proceedings  upon  the  trial  of  the 
above  cause  is  hereby  approved  and  directed  to  be  filed. 


Judge. 

[Here  give  the  pleadings  or  record  in  full,  with  the  pertinent 
opinions,  unless  they  are  already  printed  in  the  paper-book 
proper ;  also  copies  of  the  plans  or  drawings  whenever  they  have 
been  used  in  the  court  below  and  are  necessary  for  a  correct  or 
ready  understanding  of  the  case.  See  Supreme  Court  Rule  29; 
§190,  above;  Superior  Court  Rule  17,  §190,  above.  When  pos- 
sible, all  plans  and  drawings  shall  be  reduced  to  the  size  of  a 
folio  of  not  more  than  three  pages.  Supreme  Court  Rule  39; 
§189,  above;  Superior  Court  Rule  28,  §189,  above.] 


[533] 


FORMS  FOR  PAPER-BOOKS. 


§58  (B),Ap.        Judgt.  in  C.  P.  not  Founded  on  Verdict  or  Case-Stated. 

§  58.  (B) — Paper  Books  in  Appeals  from  Judgments  in 
the  Common  Pleas  not  founded  on  Verdict  or  on  Case- 
stated. 

[The  form  given  under  (A),  this  section,  applies  to  this  case, 
except  as  modified  by  the  changed  conditions  of  the  case,  and  the 
following  directions  as  to  the  contents  of  the  paper-book  in  Su- 
preme Court  Rule  30;  Superior  Court  Rule  18;  §192,  above.  The 
rules  do  not  require  the  matter  to  be  given  in  the  order  enumer- 
ated, as  is  done  in  (A),  this  section,  but  the  reason  for  the  rule 
applies  equally  in  all  cases.  (See  this  section  (A),  General  Re- 
quirements, 6.)  :] 

1.  Names  of  all  the  parties  as  they  stood  on  the  record 
of  the  court  below  at  the  time  of  the  entry  of  the  judgment, 
with  the  addition  of  the  word  "Appellant"  after  the  name 
of  the  party  taking  the  appeal,  and  the  form  of  the  action. 

2.  Abstract  of  the  record  showing  the  exact  questions 
presented  for  the  decision  of  the  court  and  how  disposed 
of. 

3.  When   necessary,    a   certificate   of   the   trial   judge 
showing  the  amount    in    controversy.      (See    §117    (B) 
[Omitted  from  Superior  Court  Rule]. 

4.  Statement  of  the  questions  involved  (See  §196). 

5.  History  of  the  case  (See  §  197). 

6.  Requests    for  findings    of  facts    and    law   and    the 
answers  thereto. 

7.  Report  of  facts  and  law  by  the  judge  sitting  without 
a  jury. 

8.  Exceptions  to  the  findings  of  the  court. 

9.  Opinion  filed. 

10.  Judgment  of  the  Court. 

11.  Assignment  of  error  (See  §  198). 

12.  Brief  of  argument  of  appellant  (See  §§  199-200). 

13.  Appendix,  containing  the  record  in  full,  except  the 

534 


FORMS  FOR  PAPER-BOOKS. 


Judgments  in  Cases-Stated,  in  Equity,  etc.     §58  (C)  (D),Ap. 

parts  thereof  printed  in  the  paper-book  proper,  and,  unless 
dispensed  with  by  the  appellee,  the  evidence  submitted  in 
the  court  below. 

14.  Copies  of  plans  or  drawings,  whenever  they  have 
been  used  in  the  court  below  and  are  necessary  for  a  cor- 
rect or  ready  understanding  of  the  case.  (See  §§  156, 
189) 

[The  assignments  of  error  are  to  the  action  of  the  court  in 
overruling  [or  sustaining]  exceptions  to  the  findings  of  the  court, 
and  not  to  the  findings  themselves,  and  exceptions  must  be  set 
forth  in  the  respective  assignments.  See  §186,  note  (2).] 

[The  final  definitive  decree,  or  so  much  as  is  objected  to,  must 
also  be  assigned  for  error:  See  §184,  note  (3).] 

§  58. — (C)  Paper-books  in  Appeals  from  Judgments  in 
Cases-stated. 

Where  the  judgment  is  on  a  case-stated  in  the  nature  of 
a  special  verdict,  [i]  the  facts  as  agreed  on  by  the  parties, 
[2]  the  opinion  of  the  court,  [3]  statement  of  the  questions 
involved,  [4]  assignments  of  error,  and  [5]  argument  of 
counsel  will  be  sufficient.  See  Supreme  Court  Rule  32; 
Superior  Court  Rule  22;  §  191. 

[It  seems  that  this  rule  contemplates  the  addition  of  the  follow- 
ing preliminary  matters :  (ist)  (a)  Names  of  parties,  (b)  nature 
of  proceeding;  (2nd)  docket  entries;  and  (3rd)  when  necessary, 
a  certificate  of  the  judge  showing  the  amount  in  controversy.  See 
§191  note  (i),  above.] 

§  58. — (D)  Paper-books  in  Appeals  from  Proceedings  in 
Equity  or  from  Proceedings  in  the  nature  thereof  in  the 
Common  Pleas. 

[The  form  given  under  (A),  this  section,  applies  to  this  case, 
except  as  modified  by  the  changed  conditions  of  the  case,  and  the 

535 


FORMS  FOR  PAPER-BOOKS. 


§58  (D),Ap.  Judgments  in  Equity,  etc. 

following  directions  as  to  the  contents  of  the  paper-book  in  Su- 
preme Court  Rule  31 ;  Superior  Court  Rule  19;  §193,  above.  The 
rules  do  not  require  the  matter  to  be  given  in  the  order  enumer- 
ated, as  is  done  in  (A),  this  section,  but  the  reasons  for  the  rule 
apply  equally  in  all  cases.  (See  this  section  (A),  General  Re- 
quirements, 6.)  :] 

1.  (a)   Names  of  the  parties  and  (b)  the  nature  of  the 
proceedings,  including  (c)  the  docket  entries. 

2.  When   necessary,    a   certificate   of   the   trial   judge 
showing  the  amount  in  controversy  (see  §  117  (B)  [Omit- 
ted from  Superior  Court  Rule]. 

3.  Short  abstract  of  the  bill  or  petition  and  answer. 

4.  Statement  of  the  questions  involved  (See  §  196). 

5.  History  of  the  case  (See  §  197). 

6.  Report  of  the  auditor,  referee  or  master,  if  there  was 
one. 

7.  Requests  for  findings  of  fact  or  law  with  the  answers 
thereto,  and  the  findings  of  the  judge. 

8.  Exceptions  taken  to  the  report  in  the  court  below. 

9.  (a)     Opinion  of  the  court  on  the  exceptions  and  (b) 
the  decree  made. 

10.  Assignments  of  error   (§  198). 

11.  Brief  of  argument  of  appellant  (See  §§  199,  200). 

12.  Appendix   containing  pleadings   in   full,   including 
any  other  opinion  of  the  court  below  filed  in  the  case,  and 
such  documentary  and  other  evidence  as  may  be  necessary. 

13.  Copies  of  plans  or  drawings,  whenever  they  have 
been  used  in  the  court  below  and  are  necessary  for  a  cor- 
rect or  ready  understanding  of  the  case  (§  199). 

[Appeals  in  assigned  and  trust  estates  in  the  common  pleas 

shall  be  entitled :  Estate  of ,  Appeal  of 

Supreme  Court  Rule  45;  Superior  Court  Rule  34;  §189,  above, 
applied.] 

536 


FORMS  FOR  PAPER-BOOKS. 


Appeals  from  O.  C.  §58  (E),Ap. 


[Assignments  of  error  lie  to  the  action  of  the  court  in  over- 
ruling or  sustaining  exceptions  to  findings,  and  not  to  the  findings 
themselves:  Warner  v.  McMullin,  131  Pa.  370,  1890;  and  the  ex- 
ceptions must  be  set  forth  in  the  respective  assignments:  See  §186, 
note  (2).] 

[The  final  definitive  decree,  or  so  much  as  is  objected  to,  must 
also  be  assigned  for  error:  see  §184,  note  (3).] 

[The  decree  must  be  not  only  final  but  also  complete  in  itself. 
Confirming  the  decree  entered  nisi  in  the  following  language: 
"Above  decree  is  entered  absolutely,"  is  not  enough:  Jessup  v. 
Boro.,  225  Pa.  583,  1910;  see  also  §44  and  notes,  above.] 

§  58 — (E)  Paper-books  in  Appeals  from  Orphans'  Court. 

[The  form  given  under  (A),  this  section,  applies  to  this  case, 
except  as  modified  by  the  changed  conditions  of  the  case,  and 
the  following  directions  as  to  the  contents  of  the  paper-book 
in  Supreme  Court  Rule  31 ;  Superior  Court  Rule  19;  §193,  above. 
The  rules  do  not  require  the  matter  to  be  given  in  the  order 
enumerated,  as  is  done  in  (A),  this  section,  but  the  reasons  for 
the  rule  apply  equally  in  all  cases.  (See  this  section  (A),  General 
Requirements,  6.)  :] 

1.  (a)  Names  of  the  parties  and  (b)  the  nature  of  the 
proceedings  including  (c)  the  docket  entries. 

2.  When  necessary,    a    certificate  of    the   trial    judge 
showing  the  amount  in  controversy.     (See   §    117)    (B) 
[Omitted  from  Superior  Court  Rule] 

3.  Short  Abstract  of  the  bill,  or  petition  and  answer. 

4.  Statement  of  the  questions  involved  (See  §  196). 

5.  History  of  the  case  (See  §  197). 

6  Report  of  the  auditor,  referee  or  master,  if  there  was 
one. 

7.  Requests  for  findings  of  fact  or  law  with  the  answers 
thereto,  and  the  findings  of  the  judge. 

8.  Exceptions  taken  to  the  report  in  the  court  below. 

537 


FORMS  FOR  PAPER-BOOKS. 


§58  (E),Ap.  Appeals  from  0.  C. 


9.  (a)    Opinion  of  the  court  on  the  exceptions,   and 
(b)  the  decree  made. 

10.  Assignments  of  error  (See  §  198). 

11.  Brief  of  argument  of  appellant  (See  §§  199,  200). 

12.  Appendix   containing  pleadings   in  full,   including 
any  other  opinion  of  the  court  below  filed  in  the  case,  and 
such  documentary  and  other  evidence  as  may  be  neces- 
sary (See  §  189). 

13.  Copies  of  plans  or  drawings,  whenever  they  have 
been  used  in  the  court  below  and  are  necessary  for  a  cor- 
rect or  ready  understanding  of  the  case  (See  §§  156,  189). 

[Appeals  in  orphans'  court  shall  be  entitled :  Estate  of , 

Appeal  of Supreme  Court  Rule  45 ;  Superior  Court 

Rule  34;  §189,  above.] 

[Assignments  of  error  lie  to  the  action  of  the  court  in  over- 
ruling or  sustaining  exceptions  to  the  findings  of  the  auditing 
judge  or  the  auditor,  and  not  to  the  findings  themselves,  and  the 
exceptions  must  be  set  forth  in  the  respective  assignments:  see 
§186,  note  (2).] 

[The  final  definitive  decree,  or  so  much  as  is  objected  to,  must 
also  be  assigned  for  error:  see  §184,  note  (3).] 

[On  appeals  from  definitive  decrees  in  the  orphans'  court,  the 
cases  will  be  decided  according  to  equity  and  justice  without 
strict  regard  to  objections  taken  or  errors  assigned.  Acts  1835, 
1836,  §229,  and  note  (2)  (a).] 

§  58 — (F)  Paper-books  in  Appeals  to  Superior  Court 
from  Proceedings  in  Quarter  Sessions,  in  Cases  not  provid- 
ed for  in  Rule  17,  (A)  this  Section. 

[The  form  given  under  (A),  this  section,  applies  to  this  case, 
except  as  modified  by  the  changed  conditions  of  the  case,  and  the 
following  directions,  as  to  the  contents  of  the  paper-book,  of  Su- 
perior Court  Rule  20;  §194,  above.  The  rules  do  not  require 
the  matter  to  be  given  in  the  order  enumerated,  as  is  done  in  (A), 

538 


FORMS  FOR  PAPER-BOOKS. 


Appeals  to  Super.  Ct.  from  Q.  S.  §  58  (F),  Ap. 

this  section,  but  the  reasons  for  the  rule  apply  equally  in  all 
cases.     (See  this  section  (A),  General  Requirements,  6).] 

1.  An  abstract  or  brief  of  all  the  petitions,  motions, 
orders,  reports,  exceptions,  etc.,  which  may  be  necessary 
to  give  the  court  here  a  full  view  of  the  record  at  once; 
and  this  in  the  precise  order  of  their  respective  dates,  and 
with  the  date  of  each  prefixed. 

2.  (a)     The  exceptions  which  were  overruled  or  sus- 
tained by  (and)   (b)  the  final  order  or  judgment  of  the 
court. 

3.  The  opinion  of  the  court,  if  it  were  filed  in  writing. 

4.  Assignments  of  Error  (See  §  198). 

5.  The  statement  of  the  questions  involved  (See  §196). 

6.  The  argument  (See  §§  199,  200). 

7.  Appendix,  containing  the  record  in  full  and  copies 
of  plans  or  drawings  whenever  they  have  been  used  in  the 
court  below  and  are  necessary  for  a  correct  or  ready  under- 
standing of  the  case  (See  Rules  §§156,  189). 

[From  analogy  to  the  other  rules  and  from  the  requirements 
of  the  case,  "by,"  in  paragraph  2,  above,  should  read  "and." 
The  phraseology  of  the  rule  was  taken  from  Supreme 
Court  Rules  adopted  Sept.  6,  1852.] 

[The  assignments  of  error  are  to  the  action  of  the  court  in 
overruling  or  sustaining  exceptions  to  findings  by  viewers,  audi- 
tors, etc.,  and  not  to  the  findings  themselves,  and  exceptions  must 
be  set  out  in  respective  assignments:  see  §186,  note  (2).] 

[The  final  definitive  decree,  or  so  much  as  is  objected  to,  must 
also  be  assigned  for  error:  see  §184,  note  (3).] 

§  58 — (G)  Paper-books  in  Appeals  in  Criminal  Cases. 

The  forms  given  under  (A),  this  section,  apply  ordin- 
arily to  criminal  cases  tried  before  a  jury. 


539 


FORMS  FOR  PAPER-BOOKS. 


§58  (H)-(K)         Appeals  from  Superior  Ct. — Appellee's  Book. 

§  58 — (H)  Paper-books  in  Appeals  from  the  Superior 
Court. 

Paper-books  on  appeals  from  the  Superior  Court  shall 
contain  [i]  the  petition  and  the  order  allowing  the  appeal, 
[2]  the  opinion  of  the  Superior  Court,  [3]  the  dissenting 
opinion  or  opinions,  if  any,  and  [4]  assignments  of  error 
to  the  judgment  of  the  Superior  Court.  If  it  is  desired  to 
use  the  paper-book  used  in  the  Superior  Court,  a  prefatory 
or  supplementary  addition  shall  be  inserted  containing  the 
matters  hereby  required.  Supreme  Court  Rule  33;  §  201. 

[For  forms  for  assignments  of  error,  see  §188  above.] 

§  58. — (I)  Paper-books  in  Appeals  in  Cases  not  Provided 
for  in  the  Rules. 

Paper-books  in  cases  not  provided  for  in  these  rules 
shall  conform  as  nearly  to  said  rules  as  circumstances  will 
admit.  Supreme  Court  Rule  32;  Superior  Court  Rule  22; 
§  191,  above. 

§  58 — (K)  Paper-book  of  Appellee. 

(1)  The  appellee,  in  his  paper-book,  may,  if  he  choose, 
give  no  more  than  his  argument.     But  he  may  at  his  op- 
tion make  a  counter-statement  of  the  questions  involved, 
and  also,  separately,  a  history  of  the  case  with  the  facts  as 
he  claims  them  to  be.     Supreme  Court  Rule  38;  Superior 
Court  Rule  27;  §202,  above. 

(2)  Index.     Although  not  required  by  rule  of  court,  it  is 
good  practice  for  appellee's  paper-book  to  have  an  index 
or  table  of  contents. 

(3)  Printing  omitted  evidence.     Appellee  may  print  evi- 
dence ordered  by  the  court  below  to  be  omitted  from  ap- 

540 


FORMS. 

Ordering  Case  on  Short  List.  §§  59,  60,  Ap. 

pellant's  paper-book,  but  it  shall  be  at  his  own  expense, 
unless  it  be  otherwise  ordered  by  the  appellate  court;  or 
the  appellate  court  may  order  any  part  or  all  thereof  to 
be  printed  by  appellant,  whenever  said  court  shall  deem  it 
necessary  so  to  do.  Act  May  n,  1911,  P.  L.  279,  §  156, 
above. 

(4).  Printing  drawings.  See  Appellant's  Paper-book 
(A)  under  appendix  thereto,  note  (5),  this  section. 

(5).  Reference  to  Appellant's  Cases.  In  commenting 
on  cases  relied  upon  by  appellant,  it  is  good  practice  to 
refer  to  the  page  of  appellant's  paper-book  where  each  case 
can  be  found,  e.  g. :  In  Smith's  Estate,  145  Pa.  145  (p.  208 
of  Appellant's  argument,)  etc. 

§59.    CERTIFICATE  OF  COUNSEL  THAT  CASES  CITED  ARE 
NOT  IN  STATE  REPORTS. 

I  hereby  certify  that  Pennsylvania  appellate  cases  cited  from  re- 
ports other  than  the  State  Reports  are  not  reported  therein. 


Attorney  for 


§60.    ORDER  TO  PUT  CASE  ON  SHORT  LIST. 

IN  THE  SUPREME  COURT  OF  PENNSYLVANIA. 
TOR  THE  .  .  DISTRICT. 


Appellant.     [ "    m'19'» 

v. 


No. 


To  the  Prothonotary  of  the  Supreme  Court. 

I  hereby  certify  that  the  above  is  a  short  cause  and  you  are  directed 
to  place  the  same  on  the  short  list. 


Attorney  for  

,19... 


541 


FORMS. 

§§61,62,  Ap.       Removing  Case  from  Short  List — Discontinuance. 

§61.    CERTIFICATE    OF    OPPOSING    COUNSEL    TO    REMOVE 
CASE  FROM  SHORT  LIST. 

IN  THE  SUPREME  COURT  OF  PENNSYLVANIA. 
FOR  THE  .  .  DISTRICT. 


Term,  19. 
v. 


Appellant. 


To  the  Prothonotary  of  the  Supreme  Court. 

I  hereby  certify  that  the  above  case  is  not  a  short  cause  and  that 
injustice  may  be  done  my  client  by  placing  it  on  the  list  of  short 
cases;  and  I  hereby  request  that  it  be  placed  back  on  the  regular  list. 


Attorney  for  

,19.. 


§62.    ORDER  FOR  DISCONTINUANCE. 

IN  THE COURT  OF  PENNSYLVANIA. 

SITTING  AT  . 


Term,  19... 
Appellant. 


v. 


No. 


To  the  Prothonotary  of  the Court. 

You  are  hereby  directed  to  enter  a  discontinuance  in  the  above  case. 


Attorney  for  

,19... 

542 


FORMS. 

Penalty  for  Delay — Petition  and  Rule.  §§  63,  64,  Ap. 

§63.  PETITION  FOE  RULE  TO  SHOW  CAUSE  WHY  PENALTY 
ON  TAKING  APPEAL  FOR  DELAY  SHOULD  NOT  BE 
IMPOSED. 

IN  THE COUKT  OF  PENNSYLVANIA. 

SITTING  AT  . 


^  Term,  19... 

Appellant. 

v'  'No. 


Petition  for  Rule  for  Penalty  on  Ground  that  Appeal  Was  Taken 
for  Delay. 

To  the  Honorable,  the  Judges  of  said  Court. 

The  petition  of  ,  the  appellee  in  the  above  ease,  re- 
spectfully represents: 

[Set  out  in  detail  all  facts  which  form  the  basis  of  the  reasons 
for  asking  for  the  imposition  of  the  penalty.] 

Your  petitioner  therefore  alleges  that  the  appeal  in  the  above  case 
was  taken  solely  for  the  purpose  of  delay  and  prays  that  a  rule  be 
granted  by  your  Honorable  Court  on  said  appellant  to  show  cause 
why  the  said  court  should  not  award  your  petitioner,  as  further  costs 
in  the  cause,  an  additional  attorney  fee  of  twenty-five  dollars  and  dam- 
ages at  the  rate  of  six  per  cent,  in  addition  to  legal  interest,  in  ac- 
cordance with  the  Act  of  Assembly  in  such  case  made  and  provided. 

And  he  will  ever  pray,  etc. 

Attorney  for  

Attorney  for  Petitioner. 

[Add  affidavit  of  truth  by  petitioner.] 

§64.  RULE  FOR  PENALTY. 

IN  THE COURT  OF  PENNSYLVANIA. 

SITTING  AT  . 


"1 Term,  19. .. 

Appellant. 


No. 

543 


FORMS. 

§§  65,  66,  Ap.    Motion  to  Quash — Petition  for  Rule  to  Take  off  Non-Pros. 

And  now,  to  wit, 19 . . ,  on  the  motion  of , 

attorney  for  appellee,  a  rule  is  granted  on  the  appellant  to  show 
cause  why  the  court  should  not  award  the  appellant  an  additional 
attorney  fee  of  twenty-five  dollars  and  damages  at  the  rate  of  six  per 
cent,  in  addition  to  legal  interest,  according  to  the  form  of  the  stat- 
ute in  such  case  made  and  provided,  returnable  on 19 ... 


[One  of  the  Justices.] 

§65.    MOTION  TO  QUASH. 

IN  THE COURT  OF  PENNSYLVANIA. 

SITTING  AT  . 


.        „  Term,  19... 

Appellant. 

>• 

No 


And  now,  ,  19..,  ,  by  his  attorney, 

,  moves  the  court  to  quash  the  appeal  in  the  above  case 

for  the  following  reasons: 

[Here  set  forth  reasons  for  motion.] 


[Signature  of  Attorney.] 

$66.    PETITION  FOR  RULE  TO  TAKE  OFF  NON  PROS. 

IN  THE COURT  OF  PENNSYLVANIA. 

SITTING  AT  . 


Term,  19. .. 
Appellant. 


No. 


To  the  Honorable,  the  Judges  of  said  Court. 

The  petition  of ,  the  above-named  appellant,  respect- 
fully represents: 

That  his  appeal  in  the  above  case  was  duly  taken  on  the 

day  of ,  19. ..  [State  the  steps  taken  prior  to  the  entry 

544 


FORMS. 

Reargument,  Petition,  Rule,  etc.  §§67,  68,  Ap. 

of  non  pros,  by  the  prothonotary  or  court,  as  the  case  may  be,  and 
then  give  reasons  for  failure  to  perform  acts  prescribed  by  rule  of 
court  or  statute,  the  non-performance  of  which  resulted  in  entry  of 
non  pros.] 

Your  petitioner  therefore  prays  your  Honorable  Court  to  grant  a 
rule  on  the  appellee  to  show  cause  why  said  non  pros,  should  not  be 
taken  off. 

And  he  will  ever  pray,  etc. 

Attorney  for  Petitioner. 
[Add  affidavit  of  truth  by  petitioner.] 

§67.    PETITION  FOR  REARGUMENT. 

IN  THE COUET  OF  PENNSYLVANIA. 

SITTING  AT  . 


I Term,  19. .. 

Appellant. 

jNo 


Petition  for  Reargument. 

To  the  Honorable  the  Justices  of  said  Court. 

The  petition  of ,  appellant  [or  appellee]  in  the  above 

case,  by  his  attorney,  ,  respectfully  prays  your  Honor- 
able Court  to  grant  him  a  rehearing  for  the  following  reasons: 

[Here  set  forth  clearly  the  reasons  for  asking  for  a  rehearing.] 


Attorney  for 


§68.  ORDER  AND  RULE  ON  PETITION  FOR  REARGUMENT. 

And  now,  to  wit,  ,  19. .,  on  motion  of  

attorney  for ,  a  rule  is  granted  to  show  cause  why  rear- 

gument  should  not  be  had  in  the  above  case,  returnable  Monday, 

[or  as  the  case  may  be]   ,  19. .,  at 

And  it  is  ordered  that  the  record  in  the  above  case  remain  in  the 

545 
35 


FORMS. 
§  69,  Ap.  New  Trial  in  Murder  Case. 

office  of  the  Prothonotary  of  the Court  pending  the  dispo- 
sition of  said  rule. 


[One  of  the  Justices.] 
[For  practice  on  motion  for  reargument,  see  §225,  above.] 

§69.    PETITION  FOB  ALLOWANCE  OF  RULE  FOR  NEW  TRIAL 
NUNC  PRO  TUNG  IN  MURDER  CASE. 

IN  THE  SUPREME  COURT  OF  PENNSYLVANIA. 

FOR  THE DISTRICT. 

Commonwealth  of  Pennsylvania. ") Term,  19 ... 


To  the  Honorable,  the  Justices  of  said  Court. 

The  petition  of ,  the  above-named  defendant,  respect- 
fully represents: 

That  at  a  Court  of  Oyer  and  Terminer  in  and  for  the  County  of 

at Sessions,  19 . . ,  No ,  he  was 

convicted  of  the  crime  of  murder  in  the  first  degree,  and  sentence  was 

pronounced  by  said  court  on ,  19 ... 

[State  any  subsequent  proceedings  had  in  case,  such  as  motion 
for  new  trial,  appeal,  etc.] 

That  since  the  conviction  and  sentence  of  your  petitioner  and  since 
the  expiration  of  the  term  of  said  Court  of  Oyer  and  Terminer  in 
which  such  conviction  and  sentence  was  procured,  evidence  has  been 
discovered  which  casts  a  substantial  doubt  on  the  guilt  of  your  peti- 
tioner, which  evidence  is  substantially  as  follows : 

[Set  forth  evidence  in  full.] 

Your  petitioner,  by  himself  and  his  attorneys,  avers  that  the  testi- 
mony above  referred  to  was  not  known  to  him  or  to  them  at  the  time 
of  the  trial;  that  they  made  all  reasonable  efforts  to  discover  all  the 
testimony  which  had  any  bearing  on  the  case,  but  failed  to  discover 
the  facts  above  set  forth ;  and  that  no  promises  were  made  or  induce- 
ments held  out  to  any  of  the  witnesses  above  referred  to  and  which 
your  petitioner  desires  to  examine  in  support  of  his  rule  for  a  new 
trial. 

546 


FORMS. 

Remittitur — Supreme  Court.  §  70,  Ap. 

Your  petitioner  therefore  prays  your  Honorable  Court  to  authorize 
the  said  Court  of  Oyer  and  Terminer  to  grant  a  rule  for  a  new  trial 
nunc  pro  tune,  notwithstanding  the  expiration  of  the  term  in  which 
your  petitioner  was  convicted  and  sentenced.  And  he  will  ever  pray, 
etc. 

Attorney  for  Petitioner 

State  of  Pennsylvania,  "^ 
County  of J  ""' 

,  the  petitioner  above  named,  being  duly  sworn   [or 

affirmed]  according  to  law,  says  that  the  statements  set  forth  in  the 
foregoing  petition  for  allowance  of  a  new  trial  nunc  pro  tune  are  true 
to  the  best  of  his  knowledge,  information  and  belief. 


Sworn  [or  affirmed]  to  and  subscribed 

before    me    this     day    of 

.,19.. 


Notary  Public. 


§70.    REMITTITUR— SUPREME  COURT. 

The  Supreme  Court  of  Pennsylvania,  ~| 

District.  JSS' 

THE  COMMONWEALTH  OF  PENNSYLVANIA. 


To  the  Justices  of  the Court  

[Seal  here.]         County  °f  '  Greeting: 

Whereas,  By  virtue  of  our  Writ  of  Certioran  from 

our  Supreme  Court  of  Pennsylvania  for  the 

District  returnable  in  the  same  court  on  the  Monday 

of in  the  year  of  our  Lord  one  thousand  nine  hundred 

and   ,  a  record  was  brought  into  the  same  court,  upon 

appeal  by from  your  judgment  [or  decree],  made  in  the 

matter  of  No , Term,  19 . . ,  wherein 

[or  the  said  appellant]  was  plaintiff  and  [or  the  said 

547 


FORMS. 

§  71,  Ap.  Remittitur — Superior  Court. 

appellant]  was  defendant.  And  it  was  so  proceeded  in  our  said  Su- 
preme Court,  that  the  following  judgment  [or  decree]  was  made,  to 
wit.  The  judgment  [or  decree]  is  therefore  reversed,  with  a  venire  fa- 
cias de  novo  [or  as  the  case  may  be].  And  the  record  proceedings 
thereupon,  and  all  things  concerning  the  same,  were  (agreeably  to  the 
directions  of  the  Act  of  Assembly  in  such  cases  made  and  provided)  or- 
dered by  the  said  Supreme  Court  to  be  remitted  to  the 

Court,   for  the  County  of   ,  aforesaid,  as 

well  for  execution  or  otherwise  as  to  justice  shall  appertain:  Where- 
fore we  here  remit  you  the  record  of  the  judgment  [or  decree]  afore- 
said and  the  proceedings  thereupon,  in  order  for  execution  or  other- 
wise as  aforesaid. 

Witness  the  Honorable ,  Chief  Justice  of  our  said  Su- 
preme Court  at  , day  of  in 

the  year  of  our  Lord  one  thousand  nine  hundred  and 


Prothonotary. 


§71.    REMITTITUR— SUPERIOR  COURT. 

The  Superior  Court  of  Pennsylvania,    "| 
Sitting  at JSS' 

THE  COMMONWEALTH  OF  PENNSYLVANIA. 


To  the  Justices  of  the Court  

FSeal  here  1  f °r  the  County  °f '  GreetinS : 

Whereas,   By   virtue  of   our  Writ   of   Certiorari 

from  our  Superior  Court  of  Pennsylvania  sitting  at 
,  returnable  in  the  same  court  on  the Mon- 
day of in  the  year  of  our  Lord  one  thousand  nine  hun- 
dred and a  record  was  brought  into  the  same  court,  upon 

appeal  by from  your  judgment  [or  decree]  made  in  the 

matter  of   No ,   Term,  19 . . , 

wherein    [or   the    said   appellant]    was   plaintiff,   and 

[or  the  said  appellant]  was  defendant.    And  it  was  so 

proceeded  in  our  said  Superior  Court,  that  the  following  judgment 
[or  decree]  was  made,  to  wit:  The  judgment  [or  decree]  is  therefore 

548 


FORMS. 

Remittitur — Superior  Court.  §  71,  Ap. 

reversed,  with  a  venire  facias  de  novo  [or  as  the  case  may  be].  And 
the  record  and  proceedings  thereupon,  and  all  things  concerning  the 
same,  were  (agreeably  to  the  directions  of  the  Act  of  Assembly  in 
such  cases  made  and  provided)  ordered  by  the  said  Superior  Court 

to  be  remitted  to  the Court  for  the 

County  of ,  aforesaid,  as  well  for  execution  or  otherwise 

as  to  justice  shall  appertain :  Whereupon  we  here  remit  you  the  record 
of  the  judgment  [or  decree]  aforesaid  and  the  proceedings  thereupon, 
in  order  for  execution  or  otherwise,  as  aforesaid. 

•  t r>:.  rr    T 

Witness,  the  Honorable  ,  President  Judge  of  our  said 

Superior  Court,  at ,  the day  of 

in  the  year  of  our  Lord  one  thousand  nine  hundred  and 

Prothonotary. 


549 


SUPREME  COURT  RULES. 


Admission  of  Attorneys. 


In  the  Supreme  Court  of  the  State  of  Pennsylvania. 

IN  THE  MATTER  OF  THE  REVISION   OF  THE 
RULES  OF  THE  SAID  COURT. 

And  now,  to  wit,  July  6,  1911,  the  Rules  of  this  Court 
as  this  day  revised  and  amended  and  as  con- 
tained in  the  following        pages,  are  hereby  adopted  and 
promulgated  as  to  be  in  force  from  and  after  the  first 
Monday  of  September,  1911. 

Per  Curiam. 


RULES  OF 
THE  SUPREME  COURT 

of  the 

STATE  OF  PENNSYLVANIA 
Sept.  4,  1911. 


ATTORNEYS. 

Rule  i.  No  person  shall  be  admitted  to  practice  as  an 
attorney  in  this  court  except  upon  the  recommendation 
of  the  State  Board  of  Law  Examiners.  [§21] 

Rule  2.  Any  applicant  for  admission  to  the  Bar  of  this 
court  who,  on  the  first  Monday  of  January,  1903,  was  a 
member  of  the  bar  of  a  court  of  common  pleas  of  this 
commonwealth,  and  after  he  shall  have  practiced  therein 

550 


SUPREME  COURT  RULES. 


Admission  of  Attorneys. 


for  at  least  two  years,  may  be  admitted,  without  exami- 
nation, upon  the  certificate  of  the  State  Board  of  Law 
Examiners;  and  no  such  candidate  shall  be  required  to 
advertise  or  pay  any  fee  for  reporting  upon  his  credentials. 

[§22] 

Rule  3.  No  person  shall  be  registered  as  a  student  at 
law  for  the  purpose  of  becoming  entitled  to  admission  to 
the  bar  of  the  Supreme  Court  until  he  shall  have  satis- 
fied the  State  Board  of  Law  Examiners  that  he  is  of 
good  moral  character,  and  shall  have  received  an  academic 
degree  from  some  college  or  university  approved  for  that 
purpose  by  the  court,  or  shall  have  passed  a  preliminary 
examination  upon  the  following  subjects:  (i)  English 
language  and  literature;  (2)  Outlines  of  Univer- 
sal History;  (3)  History  of  England  and  of  the 
United  States;  (4)  Arithmetic,  algebra  through  quad- 
ratics, and  plane  geometry;  (5)  Modern  geography;  (6) 
The  first  four  books  of  Caesar's  Commentaries,  the  first 
six  books  of  the  Aeneid,  and  the  first  four  orations  of 
Cicero  against  Catiline.  [§25] 

Every  candidate  shall  pay  to  the  State  Board  a  fee  of 
Twenty-five  dollars,  and  upon  receiving  a  certificate 
recommending  his  registration  and  certifying  that  he  is 
qualified  to  begin  the  study  of  the  law,  shall  cause  his 
name,  age,  place  of  residence,  and  the  name  of  his  pre- 
ceptor or  the  law  school  in  which  he  proposes  to  pursue 
his  studies,  to  be  registered  with  the  prothonotary  of  the 
Supreme  Court,  for  the  district  to  which  his  county  be- 
longs. [§25] 

Rule  4.  Candidates  for  admission,  who  have  spent  at 
least  three  years  after  registration  in  the  study  of  the 
law,  either  by  attendance  upon  the  regular  course  of  a 
law  school  offering  at  least  a  three  years'  course,  eight 


SUPREME  COURT  RULES. 


Admission  of  Attorneys. 


months  in  the  year  and  an  average  of  ten  hours  per  week 
each  year,  or  partly  in  a  law  school  and  partly  in  the 
office  of  a  practicing  attorney,  or  by  the  bona  fide  service 
of  a  regular  clerkship  in  the  office  of  a  practicing  at- 
torney, shall  be  eligible  to  appear  for  examination  for 
admission  to  the  bar  of  this  court  upon  complying  with 
the  following  requirements: 

1.  A  candidate  must  advertise  his  intention  to  apply 
for  admission  in  a  law  periodical  or  a  newspaper  published 
within  the  judicial  district  in  which  he  resides,  and  in  the 
Legal    Intelligencer,    once   a   week   for   four   weeks    im- 
mediately preceding  the  date  of  filing  his  credentials  with 
the  board. 

2.  He  must  file  the  necessary    credentials    with    the 
board  in  such  form  as  shall  be  prescribed  at  least  twenty  - 
one  days  before  the  date  of  the  examination  and  shall 
pay  to  the  board  a  fee  of  twenty-five  dollars. 

3.  He  must  file  a  certificate  signed  by  at  least  three 
members  of  the  bar  in  good  standing  in  the  judicial  dis- 
trict in  which  he  has  resided  or  intends  to  practice,  that 
he  is  personally  known  to  them,  and  that  they  believe  him 
to  be  of  good  moral  character. 

4.  A  certificate  from  the  dean  of  the  law  school  or  pre- 
ceptor that  he  has  been  regular  in  attendance  and  pursued 
the  study  of  the  law  with  diligence  from  the  time  of  his 
registration.     [§26] 

Rule  5.  Every  applicant  for  admission  must  sustain  a 
satisfactory  examination  in  Blackstone's  commentaries, 
constitutional  law,  including  the  constitutions  of  the 
United  States  and  Pennsylvania,  equity,  the  law  of  real 
and  personal  property,  evidence,  decedents'  estates,  land- 
lord and  tenant,  contracts,  commercial  law,  partnership, 
corporations,  crimes,  torts,  domestic  relations,  common 

552 


SUPREME  COURT  RULES. 


Admission  of  Attorneys. 


law  pleading  and  practice,  Pennsylvania  practice,  the 
federal  statutes  relating  to  the  judiciary  and  to  bank- 
ruptcy, Pennsylvania  statutes  and  decisions  and  the  rules 
of  the  Supreme  and  Superior  Courts  and  of  the  courts  of 
the  county  in  which  the  applicant  intends  to  practice. 
[§28] 

Rule  6.  Examination  for  registration  and  admission  to 
the  bar  shall  be  conducted  in  writing,  and  shall  be  held 
simultaneously,  after  due  notice,  twice  a  year,  in  the  cities 
of  Philadelphia  and  Pittsburgh.  [§28] 

Rule  7.  The  State  Board  of  Law  Examiners  shall  con- 
sist of  five  members  of  this  bar  and  shall  be  appointed 
by  the  court.  They  shall  hold  office  during  the  pleasure 
cf  the  court,  for  a  term  not  exceeding  five  years,  except 
that  of  the  members  of  the  Board  now  appointed  one 
shall  withdraw  at  the  end  of  each  year,  such  withdrawals 
to  be  made  in  the  order  of  seniority  of  admission  to  the 
bar.  The  members  of  the  board  shall  serve  without  com- 
pensation, but  shall  be  reimbursed  their  traveling  and 
other  expenses.  The  board  may,  with  the  approval  of  the 
court,  appoint  examiners  to  superintendent  the  conduct 
of  the  examinations  and  to  report  upon  the  answers  of  the 
candidates,  but  the  members  of  the  board  shall  be  respon- 
sible to  the  court  for  the  enforcement  of  these  rules,  and 
the  proper  ascertainment  of  the  results  of  the  examina- 
tions. The  board  may  also,  with  the  approval  of  the  court, 
appoint  a  secretary  and  a  treasurer,  or  the  same  person 
may  hold  both  offices,  and  they  may  pay  to  each  examiner 
and  to  the  secretary  and  treasurer  out  of  the  fees  received, 
and  after  deduction  of  the  necessary  expenses,  a  reason- 
able compensation.  When  application  is  made  for  a  sus- 
pension of  the  rules  in  any  particular  case,  the  board  of 


553 


SUPREME  COURT  RULES. 


Admission  of  Attorneys. 


examiners  shall  report  such  application  to  the  Supreme 
Court  with  a  recommendation  upon  the  merits.    [§20  (B)] 

Rule  8.  It  shall  be  the  duty  of  the  State  Board  of  Law 
Examiners  to  prepare  a  paper  for  gratuitous  distribution 
among  intending  applicants  for  registration  or  admission 
containing  detailed  information  as  to  the  subjects  of  ex- 
amination. [§20  (C)] 

Rule  9.  Attorneys  from  other  states,  upon  presenting 
satisfactory  evidence  that  they  are  members  in  good 
standing  of  the  appellate  court  of  last  resort  of  the  state 
from  which  they  came;  that  they  have  practiced  in  a 
court  of  record  of  that  state  for  at  least  five  years,  and 
that  they  are  of  good  moral  character,  may  be  admitted 
to  the  bar  of  this  court  without  examination  upon  the 
recommendation  of  the  state  board,  provided,  however, 
that  the  board  may,  in  its  discretion,  require  any  such  ap- 
plicant to  take  a  final  examination.  [§29] 

Attorneys  from  other  states,  upon  presenting  satisfac- 
tory evidence  that  they  are  members  in  good  standing  of 
a  court  of  record  of  the  state  from  which  they  came,  and 
have  practiced  therein  for  at  least  one  year,  and  that  they 
are  of  good  moral  character,  may,  in  the  discretion  of  the 
state  board,  be  permitted  to  take  a  final  examination  with- 
out previous  registration.  [§30] 

The  State  Board  of  Law  Examiners  may,  in  its  discre- 
tion, permit  an  attorney  from  another  state,  without  re- 
gard to  the  period  during  which  he  has  practiced  law  in 
that  state,  to  take  a  final  examination  without  previous 
registration  in  this  state,  if  he  shall  have  served  a  regular 
clerkship  in  the  office  of  a  practicing  attorney  in  this  state 
for  a  period  of  at  least  one  year  prior  to  said  examination. 
[§3i] 


554 


SUPREME  COURT  RULES. 


Agreements  of  Attorneys  to  be  in  Writing. 
Criminal  Cases — Errors  and  Appeals. 


AGREEMENTS  OF  ATTORNEYS. 

Rule  10.  All  agreements  and  notices  of  attorneys  touch- 
ing the  business  of  the  court  shall  be  in  writing,  otherwise 
the  court  will  not  enforce  them.  [§227] 

CRIMINAL  CASES. 

Rule  ii.  The  first  Monday  of  each  month  shall  be  a 
special  return  day  in  each  district  for  all  appeals  in  cases 
of  conviction  and  sentence  of  death  for  murder  of  the  first 
degree.  The  fifth  Monday  after  issuing  the  writ  shall  be 
assigned  for  the  argument  thereof.  [§§145  (A),  218] 

Rule  12.  Capital  cases  shall  be  placed  at  the  head  of 
the  list  for  argument.  [§218] 

Rule  13.  The  appellant  shall  serve  his  paper  books  on 
the  proper  district  attorney  ten  days  before  the  day  as- 
signed for  the  hearing,  and  the  appellee  shall  serve  his 
three  days  before  the  hearing.  [§203  (B)] 

ERRORS  AND  APPEALS. 

Rule  14.  Counsel  for  the  appellant  shall,  on  or  before 
the  return  day  of  the  term  at  which  the  case  is  upon  the 
list  for  argument,  specify  in  writing  the  particular  errors 
which  he  assigns,  and  file  the  same  in  the  prothonotary's 
office ;  and  on  failure  so  to  do  the  court  may  non  pros,  the 
writ.  [§183] 

Rule  15.  In  all  cases  where  the  record  is  not  returned 
on  the  return  day  of  the  term  at  which  the  case  is  upon 
the  list  for  argument,  it  shall  be  the  duty  of  the  prothono- 
tary  to  enter  a  non  pros.,  which  shall  not  be  taken  off 
except  by  order  of  the  court.  [§144] 

Rule  1 6.     The  prothonotary  shall  endorse  on  each  ap- 

555 


SUPREME  COURT  RULES. 


Errors  and  Appeals. 


peal  or  writ  of  certiorari  to  remove  proceedings  a  rule 
to  appear  and  plead  at  the  return  day  of  the  writ;  and  in 
default  of  appearance  when  the  cause  is  called  for  argu- 
ment, and  on  proof  of  ten  days'  service  of  the  rule  on  the 
appellee  or  his  counsel  below,  the  court  will  proceed  ex 
parte.  [§§133,  224] 

Rule  17.  In  all  cases  where,  in  pursuance  of  the  judg- 
ment of  this  court,  a  cause  goes  back  to  the  court  below 
for  further  proceedings,  it  shall  be  the  duty  of  the  pro- 
thonotary  to  certify  and  send  back  with  the  order,  decree 
or  judgment,  a  copy  of  the  opinion  of  the  court  which 
shall  have  been  filed.  [§244] 

Rule  1 8.  Motions  for  reargument  or  for  any  other  pur- 
pose, after  judgment,  order  or  decree,  shall  be  filed  in  the 
office  of  the  prothonotary  of  this  court  for  the  proper 
district,  but  the  record  shall  not  be  retained  in  any  appeal 
beyond  the  limit  of  ten  days  provided  by  the  Act  of  May 
19,  1897,  unless  upon  an  order  from  the  court  or  one  of 
the  justices  thereof.  Such  motions  must  be  accompanied 
with  a  copy  of  the  opinion  of  the  court.  [§225] 

Rule  19.  Petitions  for  the  allowance  of  an  appeal  from 
the  Superior  or  other  court,  or  for  special  supersedeas  or 
other  interlocutory  order,  must  set  forth  the  question  in- 
volved, the  opinion  of  the  court  and  the  grounds  on  which 
an  appeal  or  other  order  is  asked;  and,  where  practicable, 
must  be  accompanied  by  copies  of  the  paper-books. 

[§§135,  180] 

Rule  20.  All  such  petitions  shall  be  filed  with  the  pro- 
thonotary of  the  district  in  which  the  cause  is  pending, 
and  shall  be  presented  by  him  to  the  court  or  the  most 
convenient  justice  thereof.  For  purposes  of  computation 
of  time,  etc.,  the  matter  shall  be  deemed  to  be  sub  judice 
from  the  date  of  such  filing.  [§§136,  180] 

556 


SUPREME  COURT  RULES. 


Errors  and  Appeals. 


Rule  21.  If  the  prayer  of  the  petition  be  granted,  the 
prothonotary  shall  notify  counsel  for  the  petitioner,  who 
must  thereupon  promptly  file  his  praecipe  and  perfect  the 
appeal  in  accordance  with  the  statute,  or  take  such  action 
in  cases  not  for  appeal  as  may  be  appropriate  to  the  relief 
sought.  [§§138,  180] 

Rule  22.  All  appeals  in  civil  and  criminal  cases  from 
the  Superior  Court  to  this  court  shall  be  placed  at  the  head 
of  the  list  for  the  third  argument  week  after  the  appeal 
has  been  allowed,  and  if  the  court  is  then  sitting  in  another 
district,  the  prothonotary  shall  promptly  certify  it  to  that 
district.  [§206] 

Rule  23.  In  mandamus  proceedings ;  in  actions  of  eject- 
ment, either  legal  or  equitable,  and  in  all  other  actions 
or  issues  in  the  common  pleas  or  in  the  orphans'  court, 
which  involve  the  possession  of,  or  title  to,  real  property, 
or  chattels,  real  or  personal,  the  appellant  shall  be  re- 
quired to  file  with  his  appeal  a  certificate  of  the  judge 
hearing  the  case  that  the  value  of  the  land  or  of  the  in- 
terest or  of  the  property  really  in  controversy  is  greater 
than  fifteen  hundred  dollars.  [117  (B)] 

Rule  24.  If  the  facts  on  which  to  base  the  certificate 
do  not  appear  in  the  course  of  the  trial  or  hearing,  the 
judge  shall  require  the  parties  to  produce  evidence  thereof 
for  his  information  in  order  to  make  such  certificate 
[§117  (C)];  and  when  counsel  do  not  agree  as  to  the 
necessity  for  printing  plans  and  drawings,  the  matter  shall 
be  submitted  to  the  trial  judge,  whose  decision  shall  be 
conclusive.  [§156] 

Rule  25.  The  return  day  of  appeals  for  the  second  per- 
iod of  Philadelphia  County  shall  be  the  twelfth  Monday 
of  the  term.  [§7  (B)] 


557 


SUPREME  COURT  RULES. 


Assignments  of  Error — Paper-Books. 


ASSIGNMENTS  OF  ERROR. 

Rule  26.  Each  error  relied  on  must  be  specified  par- 
ticularly and  by  itself.  If  any  specification  embrace  more 
than  one  point,  or  refer  to  more  than  one  bill  of  excep- 
tions, or  raise  more  than  one  distinct  question,  it  shall 
be  considered  a  waiver  of  all  the  errors  so  alleged.  [§185] 

Rule  27.  When  the  error  assigned  is  to  the  charge  of 
the  court,  or  to  answers  to  points,  the  part  of  the  charge 
or  the  points  and  answers  referred  to  must  be  quoted  ip- 
sissimis  verbis  in  the  specification,  and  the  parts  of  the 
charge  assigned  as  error  shall  be  enclosed  in  brackets  in 
the  printed  charge  with  the  number  of  the  assignment 
noted.  [§186] 

Rule  28.  When  the  error  assigned  is  to  the  admission 
or  rejection  of  evidence,  or  to  the  striking  out  or  refusal 
to  strike  out  evidence,  the  specification  must  quote  the 
questions  or  offers,  the  ruling  of  the  court  thereon,  and 
the  evidence  admitted  or  rejected,  stricken  out  or  which 
the  court  refuses  to  strike  out,  together  with  a  reference 
to  the  page  of  the  paper-book  or  appendix  where  the  mat- 
ter may  be  found  in  its  regular  order  in  the  printed  evi- 
dence or  notes  of  trial.  When  the  error  alleged  is  the  ad- 
mission or  rejection  of  a  writing,  a  full  copy  of  the  writing 
must  be  printed  in  the  paper-book.  Any  assignment  of 
error  not  according  to  this  and  the  rule  immediately  pre- 
ceding will  be  disregarded.  [§§187,  198] 

PAPER-BOOKS. 

Rule  29.  In  all  cases  where  the  appeal  is  from  a  judg- 
ment on  a  verdict,  the  paper-book  of  the  appellant  shall 
contain  the  following  matters  in  the  following  order:  i. 
Names  of  all  the  parties  as  they  stood  on  the  record  of 

558 


SUPREME  COURT  RULES. 


Paper-Books. 


the  court  below  at  the  time  of  the  trial,  with  the  addition 
of  the  word  "appellant"  after  the  name  of  the  party  tak- 
ing the  appeal,  and  the  form  of  the  action.  2.  Copy  of 
the  docket  entries.  3.  Abstract  of  the  proceedings  show- 
ing the  issue  and  how  it  was  made.  4.  When  necessary, 
a  certificate  of  the  trial  judge  showing  the  amount  in  con- 
troversy (see  Rule  23  [§117  (B)]).  5.  Statement  of  the 
questions  involved  (see  Rule  34)  [§196].  6.  History  of 
the  case  (see  Rule  35  [§197]).  7.  Charge  of  the  court, 
naming  the  judge,  the  points,  if  any,  which  were  submit* 
ted  in  writing  to  the  court,  and  the  answers  thereto.  8. 
Verdict  of  the  jury  and  the  judgment  thereon.  9.  Assign- 
ments of  error.  10.  Brief  of  argument  of  the  appellant 
(see  Rule  36  [§199]).  n.  Appendix  containing  the  evi- 
dence, and  the  pleadings  in  full,  including  any  opinion  of 
the  court  below  filed  in  the  case,  and  copies  of  plans  or 
drawings,  whenever  they  have  been  used  in  the  court  be- 
low and  are  necessary  for  a  correct  or  ready  understand- 
ing of  the  case  (see  Rules  24  and  39  [§§156,  189,  198,  199; 
see  also  Rule  46,  §189]).  [For  Rule  29,  see  §190] 

Rule  30.  In  all  cases  where  the  appeal  is  from  a  final 
judgment  at  law  in  the  common  pleas,  not  founded  upon 
a  verdict  or  on  a  case  stated,  the  paper-book  of  appellant 
shall  contain:  i.  Names  of  all  the  parties  as  they  stood 
on  the  record  of  the  court  below  at  the  time  of  the  entry 
of  the  judgment,  with  the  addition  of  the  word  "appellant" 
after  the  name  of  the  party  taking  the  appeal,  and  the  form 
of  the  action.  2.  Abstract  of  the  record  showing  the 
exact  questions  presented  for  the  decision  of  the  court 
and  how  disposed  of.  3.  When  necessary,  a  certificate 
of  the  trial  judge  showing  the  amount  in  controversy  (see 
Rule  23  [§117  (B)].  4.  Statement  of  the  questions  in- 
volved (See  Rule  34  [§196].  5.  History  of  the  case  (see 

559 


SUPREME  COURT  RULES. 


Paper-Books. 


Rule  35  [§I97])>  6.  Requests  for  findings  of  facts  and  law 
and  the  answers  thereto.  7.  Report  of  facts  and  law  by 
the  judge  sitting  without  a  jury.  8.  Exceptions  to  the 
findings  of  the  court.  9.  Opinion  filed.  10.  Judgment  of 
the  court,  n.  Assignments  of  error.  12.  Brief  of  argu- 
ment of  appellant  (See  Rule  36  [§199]).  13.  Appendix, 
containing  the  record  in  full,  except  the  parts  thereof 
printed  in  the  paper-book  proper,  and,  unless  dispensed 
with  by  the  appellee,  the  evidence  submitted  in  the  court 
below  (see  Rule  46  [§189]).  14.  Copies  of  plans  or  draw- 
ings, whenever  they  have  been  used  in  the  court  below 
and  are  necessary  for  a  correct  or  ready  understanding  of 
the  case  (see  Rules  24  and  39  [§§156,  189,  198,  199]). 
[For  Rule  30,  see  §  192] 

Rule  31.  In  all  cases  where  the  appeal  is  from  a  pro- 
ceeding in  equity  or  from  a  proceeding  in  the  nature  there- 
of in  the  court  of  common  pleas,  or  from  the  orphans' 
court,  the  appellant's  paper-book  shall  contain :  i.  Names 
of  all  parties  and  the  nature  of  the  proceedings,  including 
the  docket  entries.  2.  When  necessary,  a  certificate  of  the 
trial  judge,  showing  the  amount  in  controversy  (see  Rule 
23  [§I][7  (B)].  3.  Short  abstract  of  the  bill  or  petition  and 
answer.  4.  Statement  of  the  questions  involved  (see  Rule 
34  [§196]).  5.  History  of  the  case  (see  Rule  35  [§197]). 
6.  Report  of  the  auditor,  referee  or  master,  if  there  was 
one.  7.  Requests  for  findings  of  fact  or  law  with  the  an- 
swers thereto,  and  the  findings  of  the  judge.  8.  Excep- 
tions taken  to  the  report  in  the  court  below.  9.  Opinion 
of  the  court  on  the  exceptions,  and  the  decree  made.  10. 
Assignments  of  error,  u.  Brief  of  argument  of  appellant. 
12.  Appendix  containing  pleadings  in  full,  including  any 
other  opinion  of  the  court  below  filed  in  the  case,  and  such 
documentary  and  other  evidence  as  may  be  necessary  (see 

560 


SUPREME  COURT  RULES. 


Paper-Books. 


Rule  46  [§189]).  13.  Copies  of  plans  or  drawings,  when- 
ever they  have  been  used  in  the  court  below  and  are  neces- 
sary for  a  correct  or  ready  understanding  of  the  case  (see 
Rules  24  and  39  [§§156,  189,  198,  199]).  [For  Rule  31,  see 

§193] 

Rule  32.  Where  the  judgment  is  on  a  case-stated  in 
the  nature  of  a  special  verdict,  the  facts  as  agreed  on  by 
the  parties,  the  opinion  of  the  court,  statement  of  the 
questions  involved,  assignments  of  error,  and  argument 
of  counsel  will  be  sufficient.  Paper-books  in  cases  not 
provided  for  in  these  rules  shall  conform  as  nearly  to  said 
rules  as  circumstances  will  admit.  [§191] 

Rule  33.  Paper-books  on  appeals  from  the  Superior 
Court  shall  contain  the  petition  and  the  order  allowing 
the  appeal,  the  opinion  of  the  Superior  Court,  the  dissent- 
ing opinion  or  opinions,  if  any,  and  assignments  of  error 
to  the  judgment  of  the  Superior  Court.  If  it  is  desired 
to  use  the  paper-books  used  in  the  Superior  Court,  they 
shall  have  a  prefatory  or  supplementary  addition  contain- 
ing the  matters  hereby  required.  [§201] 

Rule  34.  The  statement  of  the  question  involved  is 
designed  to  enable  the  court  to  obtain  an  immediate  view 
of  the  nature  of  the  controversy.  It  must  state  the  ques- 
tion or  questions  in  the  briefest  and  most  general  terms, 
without  names,  dates,  amounts  or  particulars  of  any  kind 
whatever.  It  should  not  ordinarily  exceed  ten  lines,  and 
must  not,  under  any  circumstances,  exceed  half  a  page. 
This  rule  is  to  be  regarded  as  in  the  highest  degree  manda- 
tory and  admitting  of  no  exception.  [§196] 

Rule  35.  The  history  of  the  case  must  contain  a  close- 
ly condensed  statement  of  all  the  facts  of  which  a  knowl- 
edge may  be  necessary  in  order  to  determine  the  points  in 


36 


SUPREME  COURT  RULES. 


Paper-Books. 


controversy  here,  but  must  not  contain  any  argument  or 
any  portion  of  the  testimony.  [§197] 

Rule  36.  The  brief  of  the  argument  must  contain  a 
clear  statement  of  the  points  on  which  the  part  relies, 
with  such  reasons  and  arguments  as  he  may  see  proper 
to  add,  together  with  all  the  authorities  which  he  thinks 
pertinent.  Where  the  error  assigned  is  to  the  finding  of 
fact  by  an  auditor  or  master,  the  printed  argument  shall 
contain  a  synopsis  of  all  the  evidence  bearing  upon  such 
disputed  question  of  fact  with  reference  to  the  page  or 
pages  of  the  appendix  of  the  paper-book  where  such  evi- 
dence may  be  found  in  extenso.  [§199] 

Rule  37.  When  authorities  are  cited  the  principle  in- 
tended to  be  sustained  by  each  case  must  be  stated.  Cases 
of  this  court  decided  since  the  commencement  of  the 
state  reports  and  cases  of  the  Superior  Court  must  be 
cited  by  the  volume  of  the  official  reports.  Wherever  de- 
cisions of  said  courts  are  cited  from  legal  periodicals,  they 
must  be  accompanied  by  the  certificate  of  counsel,  inserted 
at  the  end  of  the  argument  but  not  in  the  body  thereof, 
that  said  cases  have  not  been  reported  in  the  official  re- 
ports. Whenever  a  statute  is  cited,  the  reference  shall  bfc 
to  the  pamphlet  laws  and  also  to  a  standard  digest  in 
which  it  may  be  found.  [§200] 

Rule  38.  The  paper-book  of  the  appellee  may,  if  he 
chooses,  contain  no  more  than  his  argument.  But  he  may 
at  his  option  make  a  counter-statement  of  the  question  in- 
volved, and  also,  separately,  a  history  of  the  case,  with  the 
facts  as  he  claims  them  to  be.  [§202] 

Rule  39.  When  in  the  printed  copy  of  the  assignments 
of  error  or  in  the  printed  argument  reference  is  made  to 
the  testimony,  to  the  charge  of  the  court,  or  to  other  mat- 
ter appearing  upon  the  record,  the  pages  must  be  stated 

562 


SUPREME  COURT  RULES. 


Paper-Books. 


where  the  matter  referred  to  is  to  be  found  in  the  paper- 
book  or  appendix  [§§198,  199].  Brief  words  shall  be 
printed  at  the  top  of  each  page  of  the  paper-book,  indi- 
cating the  character  of  the  matter  contained  therein;  and 
in  the  appendix  the  name  of  the  witness  or  the  character 
cf  the  document  shall  so  appear.  The  pages  of  the  paper- 
book  shall  be  numbered  in  Arabic  figures,  and  not  in 
Roman  numerals,  those  in  the  appendix  to  be  followed 
by  a  small  a,  thus:  100  a.  When  possible,  all  plans  and 
drawings  accompanying  a  paper-book  shall  be  reduced  to 
the  size  of  a  folio  of  not  more  than  three  pages.  [§189] 

Rule  40.  In  cases  returnable  to  the  first  argument 
period  for  the  county  of  Philadelphia,  the  appellant  shall 
serve  a  copy  of  his  paper-book,  on  the  opposite  party,  or 
his  attorney,  not  later  than  December  i/th.  The  appellee 
shall  serve  a  copy  of  his  paper-book  on  the  opposite  party, 
or  his  attorney,  at  least  five  days  before  the  argument. 

In  cases  returnable  to  the  second  argument  period,  for 
the  county  of  Philadelphia,  appellant's  paper-book  shall  be 
served  on  or  before  the  fifteenth  day  preceding  the  first 
day  of  the  said  period,  and  the  appellee's  paper-book  shall 
be  served  within  ten  days  thereafter.  [§204] 

Rule  41.  In  all  cases,  except  those  originating  in  the 
county  of  Philadelphia,  the  appellant  shall  serve  a  copy  of 
his  paper-book  on  the  opposite  party,  or  his  attorney,  at 
least  twelve  days  before  the  day  appointed  for  hearing 
the  cases  from  the  county  where  the  cause  was  tried ;  and 
the  appellee  shall  serve  a  copy  of  his  paper-book  on  the 
opposite  party,  or  his  attorney,  at  least  five  days  before 
the  time  appointed  for  hearing  as  aforesaid.  But  if  the 
appeal  shall  have  been  taken  thirty  days  or  more  before 
the  day  assigned  for  the  hearing  as  aforesaid,  the  paper- 
book  of  the  appellant  shall  be  served  at  least  twenty  days 

563 


SUPREME  COURT  RULES. 


Paper-Books. 


and  that  of  the  opposite  party  at  least  five  days,  before 
the  days,  assigned  for  the  hearing  of  said  causes.  [§203 
(A)] 

Rule  42.  When  a  cause  is  called  for  argument  each 
party  shall  furnish  one  copy  of  his  paper-book  to  each  of 
the  judges,  and  eleven  to  the  prothonotary — two  for  the 
reporter,  one  for  the  Law  Association  of  Philadelphia,  one 
for  the  State  Library,  one  for  the  Legal  Intelligencer,  one 
for  the  West  Publishing  Company,  two  for  his  office,  one 
for  the  office  of  the  court  in  each  of  the  other  districts, 
and  one  for  the  records.  [§203  (A)] 

Rule  43.  When  the  appellant  is  in  default  according  to 
these  rules,  he  may  be  non-suited  on  motion;  and  when 
the  appellee  is  in  default,  he  will  not  be  heard  except  by 
special  indulgence  of  the  court.  [§205] 

Rule  44.  When  paper-books  are  furnished  which  dif- 
fer in  any  material  respect  from  those  prescribed,  the 
parties  furnishing  them  shall  be  considered  in  the  same 
default  as  if  none  had  been  furnished,  and  on  a  proper 
occasion  the  court  will,  of  its  own  motion,  non-suit  or 
silence  the  defaulting  party,  or  suppress  the  paper-book. 
[§205] 

Rule  45.  Paper-books  shall  be  furnished  on  unglazed 
book  paper  9  in.  x  6  in.  in  size,  and  printed  from  small 
pica  or  long  primer  type,  with  a  margin  of  not  less  than 
one  inch.  The  cover  must  be  sufficiently  light  in  color 
and  firm  in  texture  to  permit  writing  in  ink  thereon  to  be 
easily  read;  it  must  show  the  number  and  term  of  the 
case  in  this  court,  the  names  of  the  parties  in  the  same 
order  as  they  appear  on  the  docket  of  the  court  below, 
with  the  addition  of  the  word  "appellant"  after  the  name 
of  the  party  taking  the  appeal,  and  the  court  from  which 
the  appeal  is  taken,  Appeals  in  the  Orphans'  Court 

564 


SUPREME  COURT  RULES. 


Paper-Books — Applications  for  Interlocutory  Orders. 
Arguments  and  Argument  Lists. 

shall  be  entitled  "Estate  of  ,  Appeal  of 

[§189] 

Rule  46.  All  paper-books  shall  contain  a  full  and  com- 
plete index,  including  an  index  of  the  appendix,  which 
shall  be  on  the  inside  of  the  front  cover  of  the  book,  or  on 
the  following  pages  thereof.  The  index  of  the  appendix 
shall  contain  a  full  and  complete  reference  to  its  contents, 
including  exhibits  and  the  names  of  witnesses  and  where 
the  testimony  is  printed  indicating  in  each  instance  where 
the  examination,  cross-examination,  and  re-examination 
begins.  If  a  paper-book  contain  more  than  one  hundred 
pages,  the  appendix  shall  be  printed  in  a  separate  book 
with  a  proper  index  thereto.  [§189] 

APPLICATIONS  FOR  INTERLOCUTORY  ORDERS. 

Rule  47.  In  all  applications  for  an  order  of  supersedeas 
under  the  act  of  May  19,  1897,  P.  L.  67,  or  for  any  inter- 
locutory order,  the  applicant  shall  give  notice  to  counsel 
on  the  other  side  when  and  where  the  application  is  to  be 
made,  unless  the  exigency  of  the  case  be  such  as  to  impel 
the  court  or  judge  before  whom  the  application  is  made 
to  dispense  with  such  notice.  [§180] 

ARGUMENTS  AND  ARGUMENT  LISTS. 

Rule  48.  All  cases  shall  be  placed  upon  the  argument 
list  for  the  proper  county  next  succeeding  their  entry,  un- 
less otherwise  specially  ordered  by  the  court:  Provided. 
That  no  case  shall  be  placed  on  the  argument  list  where 
the  appeal  shall  not  have  been  taken  twenty  days  before 
the  return-day.  [§206] 

Rule  49.  Cases  will  be  called  for  argument  in  the 
order  in  which  they  stand  on  the  printed  argument  list.  If 

565 


SUPREME  COURT  RULES. 


Arguments  and  Argument  Lists. 


neither  party  be  present  or  ready  to  proceed  with  the  argu- 
ment the  case  shall  be  non  prossed,  unless  reason  to  the 
contrary  be  shown  to  the  satisfaction  of  the  court. 
[§208] 

Rule  50.  The  argument  of  each  cause  shall  be  limited 
to  one  hour,  unless  the  chief  justice,  upon  an  examination 
of  the  paper-books,  shall  consider  more  time  to  be  neces- 
sary. [§223] 

Rule  51.  Sixty  causes  shall  be  assigned  to  each  week, 
and  a  list  thereof  shall  be  made  up  and  published  by  the 
prothonotary  on  the  Saturday  preceding;  said  causes  shall 
be  set  down  in  the  order  of  their  term  and  number,  and 
shall  be  numbered  on  said  list  consecutively.  The  first 
twelve  cases  on  said  weekly  list  shall  be  assigned  for  argu- 
ment on  Monday,  and  for  each  succeeding  day  of  the  week, 
except  Saturday,  the  first  twelve  cases  theretofore  undis- 
posed of  on  said  list  shall  be  assigned  for  argument. 
[§209].  No  cause  on  said  list  shall  be  continued  when 
reached,  except  by  leave  of  the  court  upon  cause  shown. 
Engagements  of  counsel  in  the  lower  courts  will  not  be 
recognized  as  a  reason  for  the  continuance  or  postpone- 
ment of  a  cause,  except  when  they  are  actually  engaged 
in  a  trial  which  has  been  commenced  in  a  previous  week 
and  is  unfinished.  [§220] 

Rule  52.  When  it  is  desired,  for  any  reason  whatever, 
that  a  case  be  passed  at  its  regular  turn  on  the  list,  the 
prothonotary  must  be  notified  before  the  case  is  put  on 
the  daily  list.  Engagement  of  counsel  in  other  courts,  or 
agreement  of  parties,  is  no  ground  of  exception  to  thir, 
requirement.  The  rule  is  for  the  conduct  of  the  court's 
business,  and  is  not  subject  to  variation  by  counsel  for  any 
cause.  [§221] 

Rule  53.     The  list  shall  be  made  up  each  day  at  3  o'clock 

566 


SUPREME  COURT  RULES. 


Arguments  and  Argument  Lists. 


for  the  following  day,  and  cases  on  that  list  must  be  argued 
or  non  pressed  when  called.     [§211] 

Rule  54.  The  prothonotary  of  each  district  shall  keep 
a  separate  list  for  short  causes.  [§212] 

Rule  55.  To  this  list  all  causes  shall  be  transferred  in 
which  the  attorney  of  either  party  shall  certify  that  it  is 
a  short  cause.  Notice  of  such  transfer  shall  be  given  forth- 
with by  the  prothonotary  to  the  other  party.  [§214] 

Rule  56.  The  causes  on  this  list  shall  have  precedence 
over  all  others  on  Wednesday  of  the  week  in  which  the 
same  causes  would  be  heard,  if  they  had  remained  on  the 
general  list  and  had  been  reached  in  their  order.  [§216], 

Rule  57.  Where  a  cause  has  been  certified  to  be  a  short 
cause  by  the  attorney  of  one  party,  and  the  attorney  of  the 
other  party  shall  object  in  writing,  it  shall  be  put  back 
again  on  the  regular  list :  Provided,  That  such  objection 
shall  be  made  within  three  days  from  notice,  and  before 
the  short  list  is  taken  up  on  Wednesday  morning.  [§215] 

Rule  58.  On  the  hearing  of  short  causes  the  time  of 
counsel  shall  be  limited  to  fifteen  minutes  on  each  side. 
[§217] 

Supreme  Court  Districts,  Terms  and  Return  Days. 

[For  Supreme  Court  Districts  by  Counties,  and  Terms 
and  Return  days,  see  §§20  and  21,  Appendix,  above.] 


567 


SUPERIOR  COURT  RULES. 


Terms  and  Return  Days. 


RULES 

of 

THE      SUPERIOR      COURT 
OF  PENNSYLVANIA. 


TERMS  AND  RETURN  DAYS. 

Rule  i.  The  judges  of  the  Superior  Court  will  annually 
hold  terms  of  the  said  court,  and  appeals  shall  be  return- 
able, at  the  following  times  and  places,  except  as  provided 
in  Rule  7: 

First — At  Philadelphia  : 

The  first  Monday  of  October,  for  the  County  of  Phila- 
delphia. 

The  second  Monday  of  October,  for  the  County  of 
Philadelphia. 

The  third  Monday  of  October,  for  the  Counties  of 
Philadelphia,  Franklin,  Fulton  and  Wyoming. 

The  fourth  Monday  of  October,  for  the  Counties  of  Bed- 
ford, Blair,  Centre,  Clearfield,  Huntingdon,  Lebanon,  Mc- 
Kean,  Northumberland  and  Potter. 

The  second  Monday  of  November,  for  the  Counties  of 
Berks  and  Lancaster. 

The  third  Monday  of  November,  for  the  Counties  of 
Bradford,  Bucks,  Chester  and  Delaware. 

The  first  Monday  of  December,  for  the  Counties  of  Le- 
high,  Montgomery,  Northampton,  Schuylkill  and  Mon- 
roe. 

568 


SUPERIOR  COURT  RULES. 


Terms  and  Return  Days. 


The  second  Monday  of  December,  for  the  Counties  of 
Philadelphia  and  Carbon. 

Second — At  Williamsport: 

The  first  Tuesday  after  the  last  Monday  of  February, 
for  the  Counties  of  Cameron,  Clinton,  Elk,  Lycoming, 
Sullivan,  Tioga  and  Union. 

Third — At  Scranton: 

The  first  Monday  of  March  for  the  Counties  of  Colum- 
bia, Lackawanna,  Luzerne,  Montour,  Pike,  Susquehanna 
and  Wayne. 

Fourth — At  Harrisburg: 

The  second  Monday  of  March,  for  the  Counties  of 
Adams,  Cumberland,  Dauphin,  Juniata,  Mififlin,  Perry, 
Snyder  and  York. 

Fifth — At  Pittsburgh: 

The  second  Monday  of  April,  for  the  Counties  of  Alle- 
gheny, Crawford,  Erie,  Forest,  Venango  and  Warren. 

The  third  Monday  of  April,  for  the  Counties  of  Fayette, 
Greene,  Washington  and  Westmoreland. 

The  fourth  Monday  of  April  for  the  County  of  Alle- 
gheny. 

The  first  Monday  of  May,  for  the  Counties  of  Cambria, 
Clarion,  Indiana,  Jefferson,  Somerset  and  Allegheny. 

The  second  Monday  of  May,  for  the  Counties  of  Arm- 
strong, Beaver,  Butler,  Lawrence  and  Mercer. 


569 


SUPERIOR  COURT  RULES. 


Attorneys — Agreements  of  Attorneys. 


ATTORNEYS. 

scSur?e  Rule  2.  Any  applicant  for  admission  to  the  bar  of  this 
Rule  2'  court,  who,  on  May  22,  1903,  was  a  member  of  the  bar 
of  a  court  of  common  pleas  of  this  commonwealth,  and 
after  he  shall  have  practiced  therein  for  at  least  two  years, 
may  be  admitted,  without  examination,  upon  the  certifi- 
cate of  the  state  board  of  law  examiners;  and  no  such 
candidate  shall  be  required  to  advertise  or  pay  any  fee 
for  reporting  upon  his  credentials.  [§33  (B)] 

Rule  3.  Any  person  desiring  to  be  formally  admitted 
to  the  bar  of  this  court,  who,  at  the  date  of  his  applica- 
tion, shall  have  been  admitted  to  practice  at  the  bar  of  the 
Supreme  Court  of  this  commonwealth  and  is  in  good  and 
regular  standing,  may  be  admitted  and  sworn  upon  ex- 
hibiting the  certificate  of  the  prothonotary  of  the  Su- 
preme Court  of  these  facts.  [§33  (A)] 

Rule  4.  Every  applicant  for  admission,  not  within  the 
class  described  in  Rule  2,  and  not  having  been  admitted 
tc  practice  as  an  attorney  at  the  bar  of  the  Supreme  Court, 
shall  be  required  to  present  the  certificate  of  the  state 
board  of  law  examiners,  of  his  eligibility  for  admission 
to  the  bar  of  that  court;  and  any  applicant,  being  a  per- 
son of  good  moral  character,  who  shall  present  the  afore- 
said certificate,  shall  be  eligible  for  admission  to  practice 
as  an  attorney  at  the  bar  of  this  court.  [See  §33  (C)] 

Rule  5.  Attorneys  from  other  states  may  be  admitted 
upon  compliance  with  the  provisions  of  Rule  9  of  the 
Supreme  Court  relative  to  that  subject.  [See  §33  (D)] 

AGREEMENTS  OF  ATTORNEYS. 

ScourTe        Rule  6.     All  agreements  and  notices  of  attorneys  touch- 
Rule  10.    jng  the  business  of  the  court  shall  be  in  writing,  other- 
wise the  court  will  not  enforce  them.     [See  §227] 

570 


SUPERIOR  COURT  RULES. 


Criminal  Cases — Errors  and  Appeals. 


CRIMINAL  CASES. 

Rule  7.  The  first  Monday  of  each  month  shall  be  a 
special  return  day  for  all  appeals  in  criminal  cases.  The 
fifth  Monday  after  issuing  the  writ  shall  be  assigned  for 
the  argument  thereof,  provided  the  court  shall  then  be 
in  session.  If  then  in  session  in  a  place  other  than  that  in 
which  the  writ  issued,  the  prothonotary  issuing  such  writ 
shall  certify  the  record  to  the  place  in  which  the  court 
shall  be  sitting.  If  the  court  shall  not  be  in  session  at 
that  time,  the  case  shall  be  certified  to  the  place  in  which 
the  next  term  shall  be  held  [§145  (B)].  Such  cases  shall 
be  placed  at  the  head  of  the  list  for  argument  [§219].  The 
appellant  shall  serve  his  paper-books  on  the  proper  dis- 
trict attorney,  or  in  case  of  appeal  by  the  commonwealth 
on  defendant  or  his  counsel,  ten  days  before  the  day  as- 
signed for  hearing,  and  the  appellee  shall  serve  his  three 
days  before  the  hearing.  [§203  (B)] 

ERRORS  AND  APPEALS. 

Rule  8.     Counsel  for  the  appellant  shall,  on  or  before    supreme 
the  return  day  of  the  term  at  which  the  case  is  upon  the     Rule  u. 
list  for  argument,  specify  in  writing  the  particular  errors 
which  he  assigns,  and  file  the  same  in  the  prothonotary's 
office;  and  on  failure  so  to  do  the  court  may  non  pros, 
the  writ.     [§183] 

Rule  9.     In  all  cases  where  the  record  is  not  returned    supreme 

i  i  r     i  ,  •    i  Court 

on  the  return  day  of  the  term  at  which  the  case  is  upon    Rule  is. 
the  list  for  argument,  it  shall  be  the  duty  of  the  prothono- 
tary to  enter  a  non  pros.,  which  shall  not  be  taken  off  ex- 
cept by  order  of  the  court.     [§144] 

Rule  10.    The  prothonotary  shall  endorse  on  each  appeal    SuJorerme 
or  writ   of   certiorari   to   remove   proceedings   a   rule   to    Rule  16- 


SUPERIOR  COURT  RULES. 


Errors  and  Appeals — Assignments  of  Error. 


appear  and  plead  at  the  return  day  of  the  writ;  and  in 
default  of  appearance  when  the  cause  is  called  for  argu- 
ment, and  on  proof  of  ten  days'  service  of  the  rule  on  the 
appellee  or  his  counsel  below,  the  court  will  proceed  ex 
parte.  [§§133,  224] 

supreme        Rule  ii.     In  all  cases,  where,  in  pursuance  of  the  judg- 

Court  IIL 

Rule  17.  ment  of  this  court,  a  cause  goes  back  to  the  court  be- 
low for  further  proceedings,  it  shall  be  the  duty  of  the 
prothonotary  to  certify  and  send  back  with  the  order, 
decree  or  judgment,  a  copy  of  the  opinion  of  the  court 
which  shall  have  been  filed.  [§244] 

supreme  Rule  12.  Motions  for  reargument  or  for  any  other  pur- 
Ruie  is.  pose,  after  judgment,  order  or  decree,  shall  be  filed  in  the 
office  of  the  prothonotary  of  this  court  for  the  proper  dis- 
trict, but  the  record  shall  not  be  retained  in  any  appeal 
beyond  the  limit  of  ten  days  provided  by  the  Act  of  May 
19,  1897,  unless  upon  an  order  from  the  court  or  one  of 
the  judges  thereof.  Such  motions  must  be  accompanied 
with  a  copy  of  the  opinion  of  the  court.  [§225] 

Rule  13.  Every  judgment,  order,  or  decree  of  this 
court  shall  be  noted  by  the  prothonotary  on  the  minute 
book  kept  at  the  place  where  the  court  shall  be  in  session, 
?t  the  time,  and,  together  with  the  opinion  or  opinions 
filed  therewith,  be  forthwith  transmitted  to,  and  entered 
of  record  by  the  prothonotary  in  whose  office  the  appeal 
was  entered.  [§237] 

ASSIGNMENTS  OF  ERROR. 

supreme        Rule  14.     Each  error  relied  on  must  be  specified  partic- 

Ru?e12t6.    ularly  and  by  itself.     If  any  specification  embrace  more 

than  one  point,  or  refer  to  more  than  one  bill  of  excep- 

572 


SUPERIOR  COURT  RULES. 


Assignments  of  Error — Paper-Books. 


tions,  or  raise  more  than  one  distinct  question,  it  shall  be 
considered  a  waiver  of  all  the  errors  so  alleged.     [§185] 

Rule  15.  When  the  error  assigned  is  to  the  charge  of  ScouerTe 
the  court,  or  to  answers  to  points,  the  part  of  the  charge 
or  the  points  and  answers  referred  to  must  be  quoted 
ipsissimis  verbis  in  the  specification,  and  the  parts  of  the 
charge  assigned  as  error  shall  be  enclosed  in  brackets  in 
the  printed  charge,  with  the  number  of  the  assignment 
noted.  [§186] 

Rule  1 6.  When  the  error  of  assignment  is  to  the  ad-  ^[frT6 
mission  or  rejection  of  evidence,  or  to  the  striking  out  or  Rule  28- 
refusal  to  strike  out  evidence,  the  specification  must  quote 
the  questions  or  offers,  the  ruling  of  the  court  thereon, 
and  the  evidence  admitted  or  rejected,  stricken  out  or 
which  the  court  refuses  to  strike  out,  together  with  a 
reference  to  the  page  of  the  paper-book  or  appendix  where 
the  matter  may  be  found  in  its  regular  order  in  the  printed 
evidence  or  notes  of  trial.  When  the  error  alleged  is  the 
admission  or  rejection  of  a  writing,  a  full  copy  of  the 
writing  must  be  printed  in  the  paper-book.  Any  assign- 
ment of  error  not  according  to  this  and  the  rule  imme- 
diately preceding  will  be  disregarded.  [§§187,  198] 

PAPER-BOOKS. 

Rule  17.  In  all  cases  where  the  appeal  is  from  a  judg-  Scouer?e 
ment  on  a  verdict,  the  paper-book  of  the  appellant  shall 
contain  the  following  matters  in  the  following  order:  I. 
Names  of  all  the  parties  as  they  stood  on  the  record  of 
the  court  below  at  the  time  of  the  trial,  with  the  addition 
of  the  word  "appellant"  after  the  name  of  the  party  tak- 
ing the  appeal,  and  the  form  of  the  action.  2..  Copy  of 
the  docket  entries.  3.  Abstract  of  the  proceedings  show- 

573 


SUPERIOR  COURT  RULES. 


Paper-Books. 


ing  the  issue  and  how  it  was  made.  4.  Statement  of  the 
questions  involved  (see  Rule  23  [§196]).  5.  History  of 
the  case  (see  Rule  24  [§197].  6.  Charge  of  the  court, 
naming  the  judge,  the  points,  if  any,  which  were  submit- 
ted in  writing  to  the  court,  and  the  answers  thereto.  7. 
Verdict  of  the  jury  and  the  judgment  thereon.  8.  Assign- 
ments of  error.  9.  Brief  of  argument  of  the  appellant  (see 
Rule  25  [§199]).  10.  Appendix  containing  the  evidence, 
and  the  pleadings  in  full,  including  any  opinion  of  the 
court  below  filed  in  the  case,  and  copies  of  plans  or  draw- 
ings, whenever  they  have  been  used  in  the  court  below 
and  are  necessary  for  a  correct  or  ready  understanding  of 
the  case.  (See  Rules  21  and  28  [§§156,  189].  [For  Rule 
17,  see  §190] 

s  court16  Rule  *8.  In  all  cases  where  the  appeal  is  from  a  final 
Rule  so.  judgment  at  law  in  the  common  pleas,  not  founded  upon 
a  verdict  or  on  a  case  stated,  the  paper-book  of  appellant 
shall  contain:  I.  Names  of  all  the  parties  as  they  stood 
on  the  record  of  the  court  below  at  the  time  of  the  entry 
of  the  judgment,  with  the  addition  of  the  word  "appellant" 
after  the  name  of  the  party  taking  the  appeal,  and  the 
form  of  the  action.  2.  Abstract  of  the  record  showing 
the  exact  questions  presented  for  the  decision  of  the  court 
and  how  disposed  of.  3.  Statement  of  the  questions  in- 
volved (see  Rule  25  [§196]).  4.  History  of  the  case  (see 
Rule  24  [§197].  5.  Requests  for  findings  of  facts  and  law 
and  the  answers  thereto.  6.  Report  of  facts  and  law  by 
the  judge  sitting  without  a  jury.  7.  Exceptions  to  the 
findings  of  the  court.  8.  Opinion  filed.  9.  Judgment  of 
the  court.  10.  Assignments  of  error,  n.  Brief  of  argu- 
ment of  appellant  (see  Rule  25  [§199].  12.  Appendix, 
containing  the  record  in  full,  except  the  parts  thereof 
printed  in  the  paper-book  proper,  and,  unless  dispensed 

574 


SUPERIOR  COURT  RULES. 


Paper-Books. 


with  by  the  appellee,  the  evidence  submitted  in  the  court 
below.  13.  Copies  of  plans  or  drawings,  whenever  they 
have  been  used  in  the  court  below  and  are  necessary  for 
a  correct  or  ready  understanding  of  the  case.  (See  Rules 
21  and  28  [§§156,  189].  [For  Rule  18,  see  §192] 

Rule  19.     In  all  cases  where  the  appeal  is  from  a  pro-    supreme 

,.  .  ..  7.          .         ,  Court 

ceedmg  in  equity  or  from  a  proceeding  in  the  nature  Rule  31. 
thereof  in  the  court  of  common  pleas,  or  from  the  or- 
phans' court,  the  appellant's  paper-book  shall  contain:  i. 
Names  of  the  parties  and  the  nature  of  the  proceedings, 
including  the  docket  entries.  2.  Short  abstract  of  the  bill 
or  petition  and  answer.  3.  Statement  of  the  questions  in- 
volved (see  Rule  23  [§196],  4.  History  of  the  case  (see 
Rule  24  [§197].  5.  Report  of  the  auditor,  referee  or  mas- 
ter, if  there  was  one.  6.  Requests  for  findings  of  facts  or 
law  with  the  answers  thereto,  and  the  findings  of  the 
judge.  7.  Exceptions  taken  to  the  report  in  the  court 
below.  8.  Opinion  of  the  court  on  the  exceptions,  and  the 
decree  made  9.  Assignments  of  error.  10.  Brief  of  argu- 
ment of  appellant  (see  Rule  25  [§199]).  n.  Appendix, 
containing  pleadings  in  full,  including  any  other  opinion 
of  the  court  below  filed  in  the  case,  and  such  documentary 
and  other  evidence  as  may  be  necessary  (see  Rule  35 
[§189]  12  Copies  of  plans  or  drawings,  whenever  they 
have  been  used  in  the  court  below  and  are  necessary  for 
a  correct  or  ready  understanding  of  the  case.  (See  Rules 
21  and  28  [§§156,  189].  [For  Rule  19,  see  §193] 

Rule  20.  In  all  cases  where  the  appeal  is  from  proceed- 
ings in  the  court  of  quarter  sessions,  and  not  provided  for 
in  Rule  17  [§190],  the  paper-book  shall  contain:  i.  An 
abstract  or  brief  of  all  the  petitions,  motions,  orders,  re- 
ports, exceptions,  etc.,  which  may  be  necessary  to  give  the 
court  here  a  full  view  of  the  record  at  once;  and  this  in 

575 


SUPERIOR  COURT  RULES. 


Paper-Books. 


the  precise  order  of  their  respective  dates,  and  with  the 
date  of  each  prefixed.  2.  The  exceptions  which  were  over- 
ruled or  sustained  by  the  final  order  or  judgment  of  the 
court.  3.  The  opinion  of  the  court,  if  it  were  filed  in  writ- 
ing. 4.  Assignments  of  error.  5.  The  statement  of  the 
questions  involved.  6.  The  argument.  7.  Appendix,  con- 
taining the  record  in  full,  and  copies  of  plans  or  drawings 
whenever  they  have  been  used  in  the  court  below  and  are 
necessary  for  a  correct  or  ready  understanding  of  the  case. 
(See  Rules  21  and  28  [§§156,  189].  [For  Rule  20,  see 
§194] 
see  Rule  21.  When  counsel  do  not  agree  as  to  the  neces- 

Supreme 

RuieUI24  S^y  ^Or  Prmtmg  plans  and  drawings,  the  matter  shall  be 
submitted  to  the  trial  judge,  whose  decision  shall  be  con- 
clusive. [For  annotations,  see  §156]. 

Scour?e  Rule  22.  Where  the  judgment  is  on  a  case-stated  in 
Rule  32.  the  nature  of  a  special  verdict,  the  facts  as  agreed  on  by 
the  parties,  the  opinion  of  the  court,  statement  of  the 
questions  involved,  assignments  of  error,  and  argument 
of  counsel  will  be  sufficient.  Paper-books  in  cases  not 
provided  for  in  these  rules  shall  conform  as  nearly  to  said 
rules  as  circumstances  will  admit.  [§191] 

ScouerTe  Rule  23.  The  statement  of  the  question  involved  is 
Rule  34.  designed  to  enable  the  court  to  obtain  an  immediate  view 
of  the  nature  of  the  controversy.  It  must  state  the  ques- 
tion or  questions  in  the  briefest  and  most  general  terms, 
without  names,  dates,  amounts  or  particulars  of  any  kind 
whatever.  It  should  not  ordinarily  exceed  ten  lines,  and 
must  not,  under  any  circumstances,  exceed  half  a  page. 
This  rule  is  to  be  regarded  as  in  the  highest  degree  manda- 
tory and  admitting  of  no  exception.  [§196] 

ScourTe        Rule  24.     The  history  of  the  case  must  contain  a  closely 
Rule  35.    condensed  statement  of  all  the  facts  of  which  a  knowledge 

576 


SUPERIOR  COURT  RULES. 


Paper-Books. 


may  be  necessary  in  order  to  determine  the  points  in  con- 
troversy here,  but  must  not  contain  any  argument  or  any 
portion  of  the  testimony.  [§197] 

Rule  25.  The  brief  of  the  argument  must  contain  a  s 
clear  statement  of  the  points  on  which  the  party  relies,  Rule  se 
with  such  reasons  and  arguments  as  he  may  see  proper 
to  add,  together  with  all  the  authorities  which  he  thinks 
pertinent.  Where  the  error  assigned  is  to  the  finding 
of  fact  by  an  auditor  or  master,  the  printed  argument  shall 
contain  a  synopsis  of  all  the  evidence  bearing  upon  such 
disputed  question  of  fact  with  reference  to  the  page  or 
pages  of  the  appendix  of  the  paper-book  where  such  evi- 
dence may  be  found  in  extenso.  [§199] 

Rule  26.  When  authorities  are  cited,  the  principle  in-  Scou6rti 
tended  to  be  sustained  by  each  case  must  be  stated.  Cases  Rule  87 
of  the  Supreme  Court  decided  since  the  commencement 
of  the  state  reports,  and  cases  of  this  court,  must  be 
cited  by  the  volume  of  the  official  reports.  Wherever 
decisions  of  said  courts  are  cited  from  legal  periodicals, 
they  must  be  accompanied  by  the  certificate  of  counsel, 
inserted  at  the  end  of  the  argument  but  not  in  the  body 
thereof,  that  said  cases  have  not  been  reported  in  the 
official  reports.  Whenever  a  statute  is  cited,  the  reference 
shall  be  to  the  pamphlet  laws  and  also  to  a  standard  di- 
gest in  which  it  may  be  found.  [§200] 

Rule  27.     The  paper-book  of  the  appellee  may,  if  he    s*$™g 
chooses,   contain   no  more  than  his  argument.      But   he    Rule  38 
may  at  his  option  make  a  counter-statement  of  the  ques- 
tion involved,  and  also,  separately,  a  history  of  the  case, 
with  the  facts  as  he  claims  them  to  be.    [§202] 

Rule  28.  When  in  the  printed  copy  of  the  assignments  s^™$ 
of  error  or  in  the  printed  argument  reference  is  made  to  Rule  3fl 
the  testimony,  to  the  charge  of  the  court,  or  to  other 

577 

37 


SUPERIOR  COURT  RULES. 


Paper-Books. 


matter  appearing  upon  the  record,  the  pages  must  be 
stated  where  the  matter  referred  to  is  to  be  found  in  the 
paper-book  or  appendix  [§199].  Brief  words  shall  be 
printed  at  the  top  of  each  page  of  the  paper-book,  indi- 
cating the  character  of  the  matter  contained  therein;  and 
in  the  appendix  the  name  of  the  witnesses  or  the  charac- 
ter of  the  document  shall  so  appear.  The  pages  of  the 
paper  book  shall  be  numbered  in  Arabic  figures,  and  not 
in  Roman  numerals,  those  in  the  appendix  to  be  followed 
by  a  small  a,  thus:  100  a.  When  possible,  all  plans  and 
drawings  accompanying  a  paper-book  shall  be  reduced  to 

the  size  of  a  folio  of  not  more  than  three  pages.     [§189] 
Supreme 

court  Rule  29.  In  cases  returnable  to  the  first  argument 
period  for  the  county  of  Philadelphia,  the  appellant  shall 
serve  a  copy  of  his  paper-book  on  the  opposite  party,  or 
his  attorney  of  record,  at  least  ten  days  before  the  first 
day  of  the  week  to  which  the  case  is  assigned  for  argu- 
ment; the  appellee  shall  serve  a  copy  of  his  paper-book 
on  the  opposite  party,  or  his  attorney,  at  least  five  days 
before  the  argument.  In  cases  returnable  to  the  De- 
cember period  for  the  county  of  Philadelphia,  appel- 
lant's paper-book  shall  be  served  on  or  before  the  fifteenth 
day  preceding  the  first  day  of  the  said  period,  and  the 
appellee's  paper-book  shall  be  served  within  ten  days 
thereafter.  [§204] 

court"5  Rule  30.  In  all  cases,  except  those  originating  in  the 
county  of  Philadelphia,  the  appellant  shall  serve  a  copy  of 
his  paper-book  on  the  opposite  party,  or  his  attorney,  at 
least  twelve  days  before  the  day  appointed  for  hearing 
the  cases  from  the  county  where  the  cause  was  tried ;  and 
the  appellee  shall  serve  a  copy  of  his  paper-book  on 
the  opposite  party,  or  his  attorney,  at  least  five  days  be- 
fore the  time  appointed  for  hearing  as  aforesaid.  But 

578 


SUPERIOR  COURT  RULES. 


Paper-Books. 


if  the  appeal  shall  have  been  taken  thirty  days  or  more 
before  the  day  assigned  for  the  hearing  as  aforesaid,  the 
paper-book  of  the  appellant  shall  be  served  at  least  twenty 
days,  and  that  of  the  opposite  party  at  least  five  days, 
before  the  days  assigned  for  the  hearing  of  said  causes. 
[§203  (A)] 

Rule  31.  When  a  cause  is  called  for  argument,  each 
party  shall  furnish  one  copy  of  his  paper-book  to  each  of  Rule 
the  judges,  and  eleven  to  the  prothonotary— one  for  his 
office,  two  for  the  reporter,  one  for  the  Law  Association 
of  Philadelphia,  one  for  the  Allegheny  County  Law  Li- 
brary, one  for  the  State  Library,  one  for  the  Legal  In- 
telligencer, one  for  Advance  Notes,  one  for  the  Hirst  Free 
Law  Library,  and  two  for  the  court  crier.  [§203  (A)] 

Rule  32.     When  the  appellant  is  in  default  according 
to  these  rules,  he  may  be  non-suited  on  motion;  and  when    Rule  43- 
the  appellee  is  in  default,  he  will  not  be  heard  except  by 
special  indulgence  of  the  court.     [§205] 

Rule  33.     When  paper-books  are  furnished  which  dif-    SuJPrem« 
fer  in  any  material  respect  from  those  here  prescribed,    Rule  44- 
the  parties   furnishing  them   shall  be   considered   in  the 
same  default  as  if  none  had  been  furnished,  and  on  a 
proper  occasion  the  court  will,  of  its  own  motion,  non-suit 
or  silence  the  defaulting  party,   or  suppress   the  paper- 
book.     [§205] 

Rule  34.     Paper-books  shall  be  furnished  on  unglazed    supreme 

Court 

book  paper  9  in.  x  6  in.  in  size,  and  printed  from  small  Rule  45- 
pica  or  long  primer  type,  with  a  margin  of  not  less  than 
one  inch.  The  cover  must  be  sufficiently  light  in  color 
and  firm  in  texture  to  permit  writing  in  ink  thereon  to 
be  easily  read;  it  must  show  the  number  and  term  of  the 
case  in  this  court,  the  names  of  the  parties  in  the  same 

579 


SUPERIOR  COURT  RULES. 


Supreme 


Paper-Books. 
Application  for  Special  Supersedeas  or  Interlocutory  Orders. 

order  as  they  appear  on  the  docket  of  the  court  below, 
with  the  addition  of  the  word  "appellant"  after  the  name 
of  the  party  taking  the  appeal,  and  the  court  from  which 
the  appeal  is  taken.  Appeals  in  the  orphans'  court  shall 
be  entitled  "Estate  of ,  Appeal  of "  [§189] 

'court16  Rule  35.  All  paper-books  shall  contain  a  full  and  com- 
plete index,  including  an  index  of  the  appendix,  which 
shall  be  on  the  inside  of  the  front  cover  of  the  book,  or  on 
the  following  pages  thereof.  The  index  of  the  appendix 
shall  contain  a  full  and  complete  reference  to  its  con- 
tents, including  exhibits  and  the  names  of  witnesses  and 
where  the  testimony  is  printed,  indicating  in  each  in- 
stance where  the  examination,  cross-examination  and  re- 
examination  begin.  If  a  paper-book  contain  more  than 
one  hundred  pages,  the  appendix  shall  be  printed  in  a 
separate  book  with  a  proper  index  thereto.  [§189] 

APPLICATIONS  FOR  SPECIAL  SUPERSEDEAS  OR 
INTERLOCUTORY  ORDERS. 

Rule  36.  Petitions  for  the  allowance  of  special  super- 
sedeas  or  other  interlocutory  order  will  not  be  entertained 
until  after  an  appeal  has  been  actually  taken.  They  must 
set  forth  the  questions  involved  and  the  judgment  of  the 
court.  In  criminal  cases,  they  must  set  forth  specifically 
and  clearly  the  rulings  complained  of  and  the  amount  of 
bail  which  the  defendant  was  under  in  the  court  below, 
and  be  accompanied  by  a  copy  of  the  indictment.  [§181] 

ScouerTe        Rule  37.     In  all  applications  for  an  order  of  supersedeas 
Rule  47.    under  the  Act  of  May  19,  1897,  P.  L.  67,  or  for  any  inter- 
locutory order,  the  applicant  shall  give  notice  to  counsel 
on  the  other  side  when  and  where  the  application  is  to 


SUPERIOR  COURT  RULES. 


Arguments  and  Argument  Lists. 


be  made,  unless  the  exigency  of  the  case  be  such  as  to 
impel  the  court  or  judge  before  whom  the  application  is 
made  to  dispense  with  such  notice.  [§180] 

ARGUMENTS  AND  ARGUMENT  LISTS. 

Rule  38.     All  cases  shall  be  placed  upon  the  argument    supreme 
list   for  the   proper   county  next   succeeding  their  entry    Ruf^Vs. 
unless  otherwise  specially  ordered  by  the  court;  provided, 
that  no  case  shall  be  placed  on  the  argument  list  where 
the  appeal  shall  not  have  been  taken  twenty  days  before 
the  return  day.    As  to  criminal  cases,  see  Rule  7.     [§207] 

Rule  39.     Cases  will  be  called  for  argument  in  the  order    supreme 

Court 

in  which  they  stand  on  the  printed  argument  list.     If    Rule  4»- 
neither  party  be  present  or  ready  to  proceed  with  the 
argument  the  case  shall  be  non-prossed,  unless  reason  to 
the  contrary  be  shown  to  the  satisfaction  of  the  court. 
[§208] 

Rule  40.  Sixty  causes  shall  be  assigned  to  each  week,  Su£*frme 
and  a  list  thereof  shall  be  made  up  and  published  by  the  Rule  51- 
prothonotary  on  the  Saturday  preceding;  said  causes  shall 
be  set  down  in  the  order  of  their  term  and  number,  and 
shall  be  numbered  on  said  list  consecutively.  The  first 
twelve  cases  on  said  weekly  list  shall  be  assigned  for  argu- 
ment on  Monday,  and  for  each  succeeding  day  of  the 
week,  except  Saturday,  the  first  twelve  cases  theretofore 
undisposed  of  on  said  list  shall  be  assigned  for  argument 
[§210].  No  cause  on  said  list  shall  be  continued  when 
reached,  except  by  leave  of  the  court  upon  cause  shown. 
Engagement  of  counsel  in  the  lower  courts  will  not  be 
recognized  as  a  reason  for  the  continuance  or  postpone- 
ment of  a  cause,  except  when  they  are  actually  engaged 


SUPERIOR  COURT  RULES. 


Arguments  and  Argument  Lists. 


in  a  trial  which  has  been  commenced  in  a  previous  week 
and  is  unfinished.  [§220] 

Scouerme        Rule  41.    When  it  is  desired,  for  any  reason  whatever, 
Rule  52.    tjiat;  a  case  be  passeci  at  its  regular  turn  on  the  list,  the 

prothonotary  must  be  notified  before  the  case  is  put  on 
the  daily  list.  Engagement  of  counsel  in  other  courts, 
or  agreement  of  parties,  is  no  ground  of  exception  to  this 
requirement.  The  rule  is  for  the  conduct  of  the  court's  busi- 
ness, and  is  not  subject  to  variation  by  counsel  for  any 
cause.  [§221] 

scourme        Rule  42.     The  list  shall  be  made  up  each  day  at  three 
Rule  53.    o'clock  for  the  following  day,  and  cases  on  that  list  must 
be  argued  or  non-prossed  when  called.     [§211] 

Rule  43.  In  the  argument  of  cases  counsel  for  the  ap- 
pellant shall  have  the  right  to  begin  and  conclude,  but  in 
concluding  shall  be  confined  to  answering  the  arguments 
of  appellee's  counsel.  In  the  exceptional  cases  where  two 
counsel  desire  to  be  heard  for  the  appellee,  the  counsel 
speaking  second  shall  confine  his  argument  to  questions 
not  discussed  by  his  associate.  [§222] 

Rule  44.  In  all  cases  where  these  rules  do  not  apply, 
the  practice  of  this  court  shall  be  regulated  by  the  then 
present  practice  of  the  Supreme  Court  of  Pennsylvania, 
so  far  as  the  same  may  be  applied.  [§222] 


EQUITY  RULES.  Rules  i,  2 


General  Provisions. 


RULES  OF  EQUITY  PRACTICE 


IN  THE 


Courts  of  Pennsylvania 


As  adopted  by  the  Supreme  Court  May  27,  1865,  revis-ed 

and  amended  by  the  orders  of  January  15,  1894, 

October  5,  1900,  and  July  6,  ign. 


GENERAL  PROVISIONS. 

Rule  i.  The  equity  side  of  the  courts  shall  be  deemed 
always  open  for  the  purpose  of  filing  bills,  answers  and 
other  pleadings,  for  issuing  and  returning  mesne  and  final 
process  and  commissions,  and  for  making  and  directing  all 
interlocutory  motions,  orders,  rules  and  other  proceedings, 
preparatory  to  the  hearing  of  causes  upon  their  merits. 

Rule  2.  The  prothonotary's  office  shall  be  open,  and  the. 
prothonotary  shall  be  in  attendance  therein  daily,  during 
office  hours,  for  the  purpose  of  receiving,  entering,  enter- 
taining and  disposing  of  all  motions,  rules,  orders  and  other 
proceedings,  which  are  grantable  of  course,  and  applied  for 

582* 


Rules  3-5  EQUITY  RULES. 

Process  and  Appearance. 


or  had  by  the  parties  or  their  solicitors,  in  all  causes  pend- 
ing in  equity,  in  pursuance  of  the  rules  hereby  prescribed. 

PROCESS  AND  APPEARANCE. 

Rule  3.  No  suit  shall  be  deemed  pending  until  the  bill 
be  actually  filed  in  the  prothonotary's  office.  Every  bill 
shall  be  printed,  except  in  the  cases  specially  provided  for 
in  these  rules;  and  the  prothonotary  shall  endorse  thereon 
the  time  of  filing  the  same. 

Rule  4.  Unless  otherwise  provided  by  law,  the  defend- 
ant or  defendants  shall  be  required  in  the  first  instance,  to 
appear  and  answer  the  exigency  of  the  bill,  by  the  service 
upon  each  defendant  therein  named,  of  a  printed  copy 
thereof,  on  which  shall  be  endorsed  a  notice  in  the  follow- 
ing form :  "To  (here  the  name  of  the  defendant,  upon  whom 
service  is  to  be  made,  must  be  inserted).  You  are  hereby 
notified  and  required,  within  fifteen  days  after  service 
hereof  on  you,  to  cause  an  appearance  to  be  entered  for 
you  in  the  court  (here  insert  the  proper  court),  to  the 
within  bill  of  complaint  of  the  within-named  (here  insert 
the  name  of  complainant),  and  to  observe  what  the 
said  court  shall  direct.  You  are  also  notified  that  if  you 
fail  to  comply  with  the  above  directions  by  not  entering  an 
appearance  in  the  prothonotary's  office  within  fifteen  days 
you  will  be  liable  to  have  the  bill  taken  pro  confesso,  and  a 
decree  made  against  you  in  your  absence.  Witness  my 
hand  at  (here  insert  the  place  where  the  court  is  held,  the 
date  of  notice,  and  name  and  place  of  business  of  plaintiff's 
solicitor)." 

Rule  5.  The  plaintiff  shall  be  at  liberty  to  include  in 
the  rule  to  appear  a  further  requirement  to  answer  within 
thirty  days,  and  in  such  case  the  notice  shall  contain  the 

583* 


EQUITY  RULES.  Rules  5-10 

Process  and  Appearance. 


words,  "and  to  file  your  answer  within  thirty  days,"  after 
the  words  "cause  an  appearance  to  be  entered  for  you  in 
the  court,"  and  again  the  same  words  in  the  notice  that 
failure  to  comply  will  render  defendant  liable  to  judgment 
pro  confesso. 

Rule  6.  If  the  defendant  cannot  prepare  his  answer 
within  thirty  days  the  court  may  on  motion,  with  notice  to 
the  other  party,  enlarge  the  time. 

Rule  7.  Guardians  ad  litem  to  defend  a  suit  may  be  ap- 
pointed by  the  court,  or  by  any  judge  thereof,  on  petition, 
for  infants  or  other  persons,  who  are  under  guardianship, 
or  otherwise  incapable  to  sue  for  themselves;  all  infants 
and  other  persons  so  incapable  may  sue  by  their  guardians, 
if  any,  or  by  their  prochein  ami,  subject,  however,  to  such 
orders  as  the  court  may  direct,  as  to  security  or  otherwise, 
for  the  protection  of  such  infants  and  other  persons. 

Rule  8.  Service  upon  a  defendant  shall  be  by  giving 
him  a  printed  copy  of  the  bill,  with  a  notice  endorsed  there- 
on in  the  form  prescribed  in  these  rules,  or  by  leaving  such 
copy  and  notice  at  his  dwelling  house,  with  an  adult  mem- 
ber of  his  family  or  the  family  in  which  he  resides.  The 
court,  or  a  law  judge  thereof,  may  direct  how  service  shall 
be  made  in  special  cases. 

Rule  9.  In  cases  where  husband  and  wife  are  defend- 
ants, service  of  a  copy  of  the  bill  and  notice  to  appear  shall 
be  made  on  each  of  them.  Service  on  non-resident  defend- 
ants shall  be  made  in  the  mode  prescribed  by  the  acts  of 
assembly  relating  thereto. 

Rule  10.  Service  of  the  bill  and  notice  to  appear  and 
answer  on  a  corporation,  shall  be  effected  in  the  mode  pre- 
scribed by  law  for  the  service  of  a  writ  of  summons  upon 

584* 


Rules  10-13  EQUITY  RULES. 


Process  and  Appearance. 


such  corporation.  Where  the  commonwealth  is  a  neces- 
sary party,  service  shall  be  made  in  the  manner  prescribed 
by  the  act  of  6th  April,  1844. 

Rule  ii.  Whenever  the  court  shall  make  an  order 
under  the  provisions  of  the  act  of  6th  April,  1859,  f°r  a 
service  upon  a  non-resident  defendant,  without  the  com- 
monwealth, such  service  shall  be  by  delivery  to  him  of  a 
copy  of  the  bill,  such  as  is  provided  for  in  these  rules,  to- 
gether with  a  copy  of  the  order  authorizing  such  service ; 
and  in  such  case  the  form  of  subpoena  shall  be  similar  in 
substance  to  the  notice  to  appear  prescribed  by  these  rules, 
but  so  varied  as  to  require  the  defendant  to  cause  an  ap- 
pearance to  be  entered  for  him,  on  or  before  the  time  fixed 
in  such  special  order. 

Rule  12.  Whenever  the  court  shall  direct  service  by 
publication,  under  the  provisions  of  the  act  of  6th  April, 
1859,  a  copy  of  such  order,  together  with  a  statement  of 
the  substance  and  object  of  the  bill,  petition,  or  other  pro- 
ceeding, shall  be  published  in  such  one  or  more  news- 
papers, and  at  such  times  as  the  court  shall  by  special  order 
direct,  having  regard  to  the  probable  residence  of  the  de- 
fendant, and  affidavit  filed  stating  all  the  knowledge  or  in- 
formation of  the  complainant  or  deponent,  in  reference  to 
such  defendant's  place  of  residence. 

Rule  13.  Upon  filing  the  bill  the  prothonotary  shall 
enter  the  suit  upon  his  docket  as  pending  in  the  court,  and 
shall  state  the  time  of  entry;  and  upon  the  filing  of  an  affi- 
davit of  the  due  service  of  notice  to  appear  and  answer 
upon  the  defendant  or  defendants,  shall  enter  the  same 
upon  the  docket.  The  appearance  of  the  defendant,  either 
personally  or  by  solicitor,  shall  be  by  a  paper  filed  and  en- 

585* 


EQUITY  RULES.  Rules  13,  14 


Pleadings  Generally. 


dorsed  by  the  prothonotary,  with  the  time  of  filing  the 
same,  and  shall  be  noted  on  the  margin  of  the  equity  docket. 
If  the  defendant  shall  not  cause  an  appearance  to  be  en- 
tered for  him  and  an  answer  filed  within  the  time  limited 
for  that  purpose,  the  plaintiff  may,  at  his  election,  enter  an 
order  as  of  course  in  the  cause,  that  the  bill  be  taken  pro 
confesso,  or  proceed  by  attachment  as  is  hereafter  pro- 
vided by  Rule  29. 

PLEADINGS  GENERALLY. 

Rule  14.  All  bills,  and  subsequent  pleadings,  including 
amendments  where  such  amendments  exceed  one  hundred 
consecutive  words,  shall  be  printed  on  white  sized  paper  of 
a  convenient  size.  Amendments  shall  be  printed  on  one 
side  only  of  the  paper.  Each  party  appearing  by  separate 
counsel  shall  be  entitled  to  ten  copies  of  all  such  pleadings. 
The  amount  paid  for  printing  shall  be  allowed  as  costs  of 
the  cause.  This  rule  shall  not  apply  where  counsel  shall 
certify  that  his  client,  by  reason  of  poverty,  is  unable  to 
pay  for  the  same.  In  which  case,  instead  of  ten  printed 
copies,  each  party  shall  be  entitled  to  one  fairly  written 
copy  of  all  pleadings,  and  in  such  case  any  other  party 
may  print  such  papers,  and  be  allowed  for  the  expense  at 
the  termination  of  the  cause,  or  when  the  court  shall  see  fit 
to  order  the  payment  by  the  other  party.  The  prothonotary 
shall  not  permit  any  such  unprinted  pleadings  to  be  filed, 
saving  with  such  a  certificate,  and  saving  also  bills  for  in- 
junction where  counsel  shall  certify  that  there  has  not 
been  time  to  print  the  same.  And  such  injunction  bills 
shall  be  withdrawn  and  deemed  finally  dismissed  as  of 
course,  unless  within  twenty  days  after  filing  the  same, 
printed  copies  are  filed  and  served. 

586* 


Rules  15-17  EQUITY  RULES. 

Structure  of  Bill. 


STRUCTURE  OF  BILL. 

Rule  15.  Every  bill  shall  be  expressed  in  as  brief  and 
succinct  terms  as  it  reasonably  can  be,  and  shall  contain  no 
unnecessary  recitals  of  deeds,  documents,  contracts,  or 
other  instruments,  in  haec  verba,  or  any  other  impertinent 
matter,  or  any  scandalous  matter  not  relevant  to  the  suit. 
If  it  do,  it  may  be  heard  by  any  law  judge  of  the  court  on 
exceptions  for  impertinence  or  scandal,  and  if  so  found  by 
him,  the  matter  shall  be  expunged  at  the  expense  of  the 
plaintiff,  and  he  shall  pay  to  the  defendant  all  his  costs  in 
the  suit  up  to  that  time,  unless  the  court  or  a  law  judge 
thereof  shall  otherwise  order.  If  the  judge  shall  find  that 
the  bill  is  not  scandalous  or  impertinent,  the  plaintiff  shall 
be  entitled  to  such  allowance  for  trouble  and  delay  as  the 
court  may  decree  equitable,  to  be  taxed  as  part  of  the  costs 
in  the  case. 

Rule  16.  Every  bill,  in  the  introductory  part  thereof, 
shall  contain  the  names  of  all  the  parties,  plaintiffs,  and 
defendants,  by  and  against  whom  the  bill  is  brought.  The 
form  in  substance  shall  be  as  follows:  In  the  (style  of 
court)  Sitting  in  equity.  Between  A  B,  plaintiff,  and  C  D, 
defendant.  To  the  Honorable  the  Judges  of  the  said  court 
your  orator  complains  and  says,  &c. 

Rule  17.  The  bill  shall  be  divided  into  paragraphs  con- 
secutively numbered,  and  shall  contain  a  succinct  state- 
ment of  the  facts  upon  which  the  plaintiff  asks  relief,  and, 
at  his  option,  the  facts  which  are  intended  to  avoid  an 
anticipated  defence,  and  such  averments  as  may  be  neces- 
sary under  the  rules  of  equity  pleading  to  entitle  the  plain- 
tiff to  relief,  and  the  prayer  for  relief  and  for  special  orders, 
writs,  or  process,  which  shall  also  be  so  divided  and  num- 

587* 


EQUITY  RULES.  Rules  18-21 

Parties. 

bered.  The  combination  clause,  the  interrogatories,  and 
the  allegation  of  want  of  remedy  at  law  and  similar  formal 
averments  shall  be  omitted. 

PARTIES. 

Rule  18.  Where  no  account,  payment  or  conveyance,  or 
other  direct  relief  is  sought  against  a  party  to  a  suit  not 
being  an  infant,  the  party  upon  service  of  the  notice  upon 
him,  need  not  appear  and  answer  the  bill  unless  the  plain- 
tiff especially  requires  him  so  to  do,  by  the  prayer  of  his 
bill ;  but  he  may  appear  and  answer  at  his  option ;  and  if  he 
does  not  appear  and  answer  he  shall  be  bound  by  all  the 
proceedings  in  the  cause.  If  the  plaintiff  shall  require  him 
to  appear  and  answer,  he  shall  be  entitled  to  the  costs  of  all 
the  proceedings  against  him,  unless  the  court  shall  other- 
wise direct. 

Rule  19.  Where  infants  or  persons  not  sui  juris,  are 
parties,  the  fact  shall  be  specially  stated  in  the  bill,  so  that 
the  court  before  or  after  the  service  of  process  may  take 
such  order  thereon  as  justice  may  require. 

Rule  20.  Where  persons  without  the  jurisdiction  are 
proper  or  necessary  parties,  this  fact  shall  be  stated  in  the 
bill,  and  they  may  be  brought  in  by  service  when  they 
come  within  the  jurisdiction  of  the  court,  or  under  a  special 
order  as  provided  by  the  acts  of  assembly. 

Rule  21.  In  all  cases  where  it  shall  appear  to  the  court 
that  persons  who  might  otherwise  be  deemed  necessary 
or  proper  parties  to  the  suit,  cannot  be  made  parties  by 
reason  of  their  being  out  of  the  jurisdiction  of  the  court,  in- 
capable otherwise  of  being  made  parties,  or  because  their 
joinder  would  oust  the  jurisdiction  of  the  court  as  to  the 

588* 


Rules  22-24  EQUITY  RULES. 

Parties. 

parties  before  the  court,  the  court  may,  in  their  discretion, 
proceed  in  the  cause  without  making  such  persons  par- 
ties; and  in  such  cases  the  decree  shall  be  without  preju- 
dice to  the  rights  of  the  absent  parties. 

Rule  22.  Where  the  parties  on  either  side  are  very 
numerous,  and  cannot  without  manifest  inconvenience  and 
oppressive  delays  in  the  suit  be  all  brought  before  it,  the 
court  in  its  discretion  may  dispense  with  making  all  of 
them  parties,  and  may  proceed  in  the  suit,  having  sufficient 
parties  before  it  to  represent  all  the  adverse  interest  of  the 
plaintiffs  and  the  defendants  in  the  suit  properly  before  it. 
But  in  such  cases  the  decree  shall  be  without  prejudice  to 
the  rights  and  claims  of  all  the  absent  parties. 

Rule  23.  In  all  suits  concerning  real  estate,  which  is 
vested  in  trustees,  and  such  trustees  are  competent  to  sell 
and  give  discharges  for  the  proceeds  of  the  sale,  and  for  the 
rents  and  profits  of  the  estate,  such  trustees  shall  represent 
the  persons  beneficially  interested  in  the  estate  or  the  pro- 
ceeds, or  the  rents  and  profits,  in  the  same  manner  and  to 
the  same  extent  as  the  executors  or  administrators  in  suits 
concerning  personal  estate  represent  the  persons  benefi- 
cially interested  in  such  personal  estate,  and  in  such  cases 
it  shall  not  be  necessary  to  make  the  persons  beneficially 
interested  in  such  real  estate  or  rents  and  profits  parties  to 
the  suit,  but  the  court  may,  upon  consideration  of  the  mat- 
ter on  the  hearing,  if  it  shall  so  think  fit,  order  such  persons 
to  be  made  parties. 

Rule  24.  In  suits  to  execute  the  trusts  of  a  will,  it  shall 
not  be  necessary  to  make  the  heir-at-law  a  party;  but  the 
plaintiff  shall  be  at  liberty  to  make  the  heirs-at-law  parties 
where  he  desires  to  have  the  will  established  against  them. 

589* 


EQUITY  RULES.  Rules  25-27 


Parties. 


Rule  25.  In  all  cases  where  the  plaintiff  has  a  joint  and 
several  demand  against  several  persons  either  as  princi- 
pals or  sureties,  it  shall  not  be  necessary  to  bring  before 
the  court,  as  parties  to  a  suit  concerning  such  demand,  all 
the  persons  liable  thereto;  but  the  plaintiff  may  proceed 
against  one  or  more  of  the  persons  severally  liable.  But 
the  defendant  may  at  once  proceed  by  a  bill  in  the  nature 
of  a  cross-bill,  against  such  party  as  is  liable  jointly  with 
him,  and  such  party  shall  be  permitted  to  make  himself  a 
party  to  the  original  cause,  and  defend  the  same,  and  the 
proceedings  in  the  original  cause  shall,  after  the  service 
01  such  cross-bill,  be  conclusive  as  to  such  other  party, 
and  if  he  shall  appear  thereto,  be  conducted  as  if  he  had 
been  made  a  party  thereto  in  the  first  instance. 

Rule  26.  If  a  defendant  shall,  at  the  hearing  of  a  case, 
object  that  a  suit  is  defective  for  want  of  parties  not  hav- 
ing taken  the  objection  by  answer  or  demurrer,  and  there- 
in specified  by  name  or  description  the  parties  to  whom 
the  objection  applies,  the  court,  if  it  shall  think  fit,  shall  be 
at  liberty  to  make  a  decree,  saving  the  rights  of  the  absent 
parties. 

Rule  27.  Where  the  defendant  shall,  by  his  answer, 
suggest  that  the  bill  is  defective  for  want  of  parties,  the 
plaintiff  shall  be  at  liberty,  within  fourteen  days  after  an- 
swer filed,  to  set  down  the  cause  for  argument  upon  that 
objection  only;  and  the  purpose  for  which  the  same  is  so 
set  down  shall  be  notified  by  an  entry,  to  be  made  in  the 
equity  docket,  in  the  form  or  to  the  effect  following,  that 
is  to  say:  "Set  down  upon  the  defendant's  objection  for 
want  of  parties."  And  where  the  plaintiff  shall  not  set 
down  his  cause,  but  shall  proceed  therewith  to  a  hearing, 
notwithstanding  an  objection  for  want  of  parties  taken  by 

590* 


Rules  27-29  EQUITY  RULES. 

Parties,  Demurrers,  and  Decrees  Pro  Confesso. 

the  answer,  he  shall  not,  at  the  hearing  of  the  cause,  if  the 
defendant's  objection  shall  then  be  allowed,  be  entitled  as 
of  course  to  an  order  for  liberty  to  amend  his  bill  by  add- 
ing parties.  But  the  court,  if  it  think  fit,  shall  be  at  liberty 
to  dismiss  the  bill. 

Rule  28.  The  parties  to  a  suit  may  at  any  time  before 
decree,  by  agreement  in  writing,  without  special  motion, 
consent  that  the  bill  be  dismissed,  with  or  without  costs, 
as  may  be  stipulated ;  and  upon  payment  of  the  costs  due  to 
the  officers  of  the  court,  such  agreement  shall  be  entered 
upon  the  docket,  and  the  suit  shall  be  thereupon  fully 
ended  and  discontinued. 

DEMURRERS,  AND  DECREES  PRO  CONFESSO. 

Rule  29.  The  plaintiff  shall  be  entitled  in  filing  his  bill 
to  a  rule  on  defendant  to  be  entered  of  course  in  the  pro- 
thonotary's  office,  to  file  his  demurrer,  or  answer  to  the  bill 
within  thirty  days  after  service  of  notice  of  such  rule;  in 
default  of  compliance  therewith  the  plaintiff  may  at  his 
election  enter  an  order  as  of  course  in  the  cause,  that  the 
bill  be  taken  pro  confesso.  And  in  such  case,  and  also 
where  the  bill  is  taken  pro  confesso  for  want  of  an  ap- 
pearance, the  cause  shall  be  proceeded  in  ex  parte,  and 
the  case  may  be  put  upon  the  next  equity  argument  list, 
and  the  matter  of  the  bill  may  be  decreed  by  the  court 
when  there  reached  in  its  order,  if  the  same  can  be  done 
without  an  answer,  upon  the  allegations  in  the  bill,  which 
without  further  proof  shall  be  taken  as  admitted;  or  the 
plaintiff,  if  he  requires  any  discovery  or  answer  to  enable 
him  to  obtain  a  proper  decree  shall  be  entitled  to  process 
of  attachment  against  the  defendant  to  compel  an  answer, 
and  the  defendant  shall  not,  when  arrested  upon  such  pro- 


EQUITY  RULES.  Rules  29-32 

Demurrers  and  Decrees  Pro  Confesso. 

cess,  be  discharged  therefrom  unless  upon  filing  his  an- 
swer or  otherwise  complying  with  such  order  as  the  court 
or  a  law  judge  thereof  may  direct  as  to  fully  answering  the 
bill  within  a  period  to  be  fixed  by  the  court  or  judge,  and 
undertaking  to  speed  the  cause;  or  it  shall  be  in  the  op- 
tion of  the  plaintiff,  when  such  rule  to  answer  or  demur 
shall  have  been  served  as  aforesaid  and  not  complied  with 
or  on  default  of  appearance  by  the  defendant  within  the 
time  limited  therefor,  instead  of  taking  the  bill  pro  con- 
fesso,  to  have  process  of  contempt  to  compel  an  answer. 

Rule  30.  When  the  bill  is  taken  pro  confesso,  and  the 
court  shall  have  proceeded  to  a  decree  as  aforesaid,  such 
decree  so  rendered  shall  be  deemed  absolute,  unless  the 
court  or  a  law  judge  thereof  shall,  within  fourteen  days 
after  the  service  of  notice  of  such  decree  on  the  defendant, 
set  aside  the  same  and  give  the  defendant  time  for  filing  an 
answer  upon  cause  shown.  And  no  such  motion  shall  be 
granted,  unless  the  defendant  shall  undertake  to  file  his  an- 
swer within  such  time  as  the  court  shall  direct,  and  sub- 
mit to  such  other  terms  as  the  court  shall  direct  for  the 
purpose  of  speeding  the  cause. 

Rul'e  31.  The  defendant  may,  at  any  time  before  the 
bill  is  taken  for  confessed,  or  afterwards  with  the  leave  of 
the  court,  demur  to  the  whole  bill  or  to  part  of  it,  and  he 
may  demur  to  part  and  answer  as  to  the  residue;  but  all 
issues  of  fact  must  be  made  by  answer. 

Rule  32.  No  demurrer  shall  be  allowed  to  be  filed  to 
any  bill,  unless  supported  by  affidavit  that  it  is  not  inter- 
posed for  delay.  Demurrers  shall  be  substantially  in  the 
form  following:  "The  defendant  demurs  to  the  whole 
bill,"  "or  to  so  much  of  the  bill,  or  discovery  or  relief," 

592* 
37a 


Rules  33-36  EQUITY  RULES. 

Demurrers  and  Decrees  Pro  Confesso. 

stating  the  particulars  and  assigning  the  reason  or  grounds 
in  detail. 

Rule  33.  The  plaintiff  may  set  down  the  case  for  argu- 
ment on  the  demurrer,  and  if  he  shall  not  do  so  within  ten 
days  after  service  of  the  same,  the  defendant  may  set  it 
down  for  argument  on  five  days'  notice. 

Rule  34.  No  demurrer  shall  be  held  bad  and  overruled 
upon  argument,  only  because  such  demurrer  shall  not 
cover  so  much  of  the  bill  as  it  might  by  law  have  extended 
to,  or  because  the  answer  of  the  defendant  may  extend  to 
some  part  of  the  same  matter  as  may  be  covered  by  such 
demurrer. 

Rule  35.  If,  upon  the  hearing,  any  demurrer  or  plea 
shall  be  allowed,  the  court  may,  in  its  discretion,  upon 
motion  of  the  plaintiff,  allow  him  to  amend  his  bill  upon 
such  terms  as  it  shall  deem  reasonable. 

Rule  36.  If  upon  the  hearing,  any  demurrer  is  over- 
ruled, unless  the  court  shall  be  satisfied  that  it  was  in- 
tended for  vexation  and  delay,  the  defendant  shall  be  re- 
quired to  answer  the  bill,  or  so  much  thereof  as  is  covered 
by  the  demurrer,  at  such  period  as,  consistently  with  jus- 
tice and  the  rights  of  the  defendant,  the  same  can,  in  the 
judgment  of  the  court,  be  reasonably  done;  in  default 
whereof  the  bill  shall  be  taken  against  him,  pro  confesso, 
and  the  matter  thereof  proceeded  in  and  decreed  accord- 
ingly; and  such  decree  shall  also  be  made  when  the  court 
deems  the  plea  or  demurrer  to  have  been  for  vexation  or 
delay,  or  to  have  been  frivolous  or  unfounded. 

ANSWERS  AND  CROSS-BILLS. 
Rule  37.     The  defendant  shall  make  answer  to  all  the 

593* 


EQUITY  RULES.  Rules  37,  38 

Answers  and   Cross-Bills. 

material  allegations  of  the  bill.  The  answer  of  a  defend- 
ant must  be  in  the  first  person,  and  divided  into  para- 
graphs, numbered  consecutively,  each  paragraph  contain- 
ing, as  nearly  as  may  be,  a  separate  and  distinct  allegation. 
The  rule,  that  if  the  defendant  submits  to  answer,  he  shall 
answer  fully  to  all  the  matters  of  the  bill,  shall  no  longer 
apply  in  cases  where  he  might,  by  plea  or  demurrer,  protect 
himself  from  such  answer  and  discovery.  And  the  defend- 
ant shall  be  entitled  in  all  cases,  by  answer,  to  insist  upon 
all  matters  of  defence  in  law  (not  being  matters  of  abate- 
ment, or  to  the  character  of  the  parties,  or  of  matters  of 
form),  to  the  merits  of  the  bill,  of  which  he  may  be  en- 
titled to  avail  himself  by  demurrer  or  plea  in  bar;  and  in 
such  answer  he  shall  not  be  compellable  to  answer  any 
other  matters  than  he  would  be  compellable  to  answer  and 
discover,  upon  filing  a  demurrer  or  plea  in  bar  and  an  an- 
swer in  support  of  such  plea,  touching  the  matters  set 
forth  in  the  bill  to  avoid  or  repel  the  bar,  or  defence. — 
Thus,  for  example,  a  bona  fide  purchaser,  for  a  valuable 
consideration,  without  notice,  may  set  up  the  defence  by 
way  of  answer,  instead  of  plea,  and  shall  be  entitled  to  the 
same  protection,  and  shall  not  be  compellable  to  make  any 
further  answer  or  discovery  of  his  title  than  he  would  be 
in  any  answer  in  support  of  such  plea. 

Rule  38.  Specific  interrogatories  to  defendants  shall 
not  be  included  in  the  bill,  but  may  be  filed  separately,  if 
necessary.  In  like  manner,  any  defendant  shall  be  entitled 
to  file  interrogatories  to  any  of  the  plaintiffs  after  he  shall 
have  put  in  his  own  answer  to  the  bill.  In  either  case,  they 
may  be  filed  at  any  time  before  the  taking  of  testimony  is 
begun,  and  shall  be  deemed,  with  the  answers,  part  of  the 
pleadings.  By  special  leave  on  notice,  they  may  be  filed 

594* 


Rules  38,  39  EQUITY  RULES. 


Answers  and  Cross-Bills. 


after  testimony  has  been  taken,  and  answers  required  at 
such  time  as  the  court  or  a  law  judge  may  order.  They 
shall  be  divided  as  conveniently  as  may  be,  and  numbered. 
Where  there  is  more  than  one  defendant  or  plaintiff,  the 
particular  interrogatories  which  each  is  required  to  answer 
shall  be  specified  by  a  note  at  the  foot  of  the  paper.  A 
copy  shall  be  served  on  each  party  required  to  answer 
them,  or  his  counsel,  and  an  order  of  course,  to  answer 
within  ten  days  after  such  service,  and  on  neglect  to  an- 
swer any  interrogatory  and  serve  a  copy  of  such  answer 
within  that  time,  the  plaintiff  or  defendant,  as  the  case 
may  be,  shall  be  entitled  to  move  for  an  attachment  to 
compel  an  answer. 

Rule  39.  A  plaintiff  or  defendant  shall  be  at  liberty  to 
decline  answering  any  interrogatory,  or  part  of  an  inter- 
rogatory, when  he  might  have  protected  himself  by  de- 
murrer from  answering  the  subject-matter  of  the  interro- 
gatory; and  he  shall  be  at  liberty  so  to  decline,  notwith- 
standing he  shall  answer  other  interrogatories,  from  which 
he  might  have  protected  himself  by  demurrer,  and  the 
plaintiff  or  defendant  may,  on  forty-eight  hours'  notice,  set 
down  the  matter  for  a  hearing  before  any  law  judge  of  the 
court,  as  on  an  exception  to  the  answer  for  insufficiency. 
But  where  the  interrogatories  are  not  fully  answered,  and 
no  reason  is  assigned  for  the  omission,  the  particular  ob- 
jection must  be  pointed  out  by  exception,  to  be  filed  and 
served  at  least  ten  days  before  the  hearing  of  such  excep- 
tion. The  plaintiff  or  defendant  shall  be  at  liberty,  before 
answers  to  the  interrogatories  are  filed,  or  pending  excep- 
tions, to  file  or  require  a  replication  and  proceed  to  take 
testimony  without  waiver  of  his  right  to  such  answers,  or 
of  his  exceptions  to  the  answers. 

595* 


EQUITY  RULES.  Rules  40-43 


Answers  and  Cross-Bills — Exceptions  to  Answers. 

Rule  40.  Cross-bills  for  discovery  only  shall  not  be  al- 
lowed, but  the  defendant  shall  be  at  liberty  instead  there- 
of, to  file  interrogatories  to  the  plaintiff  as  above  provided. 
In  other  cross-bills  no  further  reference  shall  be  made  to 
the  matters  contained  in  the  original  bill  than  shall  be 
necessary,  but  the  same  may  be  treated  as  if  incorporated 
therein.  The  rules  regulating  the  form  of  bills  shall  apply 
to  cross-bills.  If  no  new  parties  are  introduced,  service  of 
a  copy  of  the  cross-bill  on  the  counsel  of  the  plaintiff  in  the 
original  bill  shall  be  sufficient.  Where  other  persons  are 
made  parties,  the  service  shall  be  in  the  manner  provided 
in  original  bills,  a  copy  of  such  original  bill  being  served 
together  with  the  cross-bill,  and  such  new  parties  shall  be 
entitled  to  have  copies  of  the  answer  to  the  original  bill 
as  required  for  the  plaintiff. 

Rule  41.  Answers  and  affidavits  may  be  sworn  to  be- 
fore any  person  authorized  to  administer  oaths  under  the 
laws  or  usages  of  this  commonwealth,  or  of  any  other 
state,  territory,  or  country,  where  the  oath  is  taken. 

EXCEPTIONS  TO  ANSWERS. 

Rule  42.  After  an  answer  to  the  bill,  to  interrogatories 
or  to  any  other  pleading  has  been  filed,  the  opposite  party 
shall  be  allowed  twenty  days  from  the  service  of  a 
copy  of  such  answer  on  his  counsel,  to  file  in  the  prothono- 
tary's  office  exceptions  thereto,  and  no  longer,  unless  ad- 
ditional time  shall  be  allowed  for  the  purpose,  upon  cause 
shown  to  the  court  or  a  law  judge  thereof;  and  if  no  ex- 
ceptions shall  be  filed  thereto  within  that  period,  the  an- 
swer shall  be  deemed  and  taken  to  be  sufficient. 

Rule  43.  Where  an  exception  shall  be  filed  to  the  an- 
swer for  insufficiency,  within  the  period  prescribed  by 

596* 


Rules  43-45  EQUITY  RULES. 


Exceptions  to  Answers. 


these  rules,  if  the  party  riling  the  answer  shall  not  submit 
to  the  same,  and  file  an  amended  answer  within  ten  days 
from  service  of  a  copy  of  such  exception  on  counsel,  the 
exceptant  shall  forthwith  order  the  prothonotary  to  set 
the  matter  down  for  a  hearing  on  the  next  day  thereafter 
appointed  for  such  causes,  before  a  law  judge  of  the  court, 
and  shall  give  notice  of  such  order  to  the  opposite  party 
or  his  solicitor.  And  if  he  shall  not  so  set  the  same  down 
for  a  hearing,  the  exception  shall  be  deemed  abandoned, 
and  the  answer  shall  be  deemed  sufficient;  provided,  how- 
ever, that  the  court  or  any  law  judge  thereof  may,  for  good 
cause  shown,  enlarge  the  time  for  filing  an  exception  or  for 
filing  an  amended  answer  in  their  or  his  discretion,  upon 
such  terms  as  they  or  he  may  deem  reasonable.  Excep- 
tions shall  be  printed,  and  the  expense  of  printing  such  as 
are  sustained  shall  be  allowed  as  costs,  to  be  immediately 
recovered. 

Rule  44.  If,  at  the  hearing,  any  exception  shall  be  al- 
lowed, the  party  answering  shall  be  bound  to  put  in  a  full 
and  complete  answer,  within  ten  days,  unless  the  time  be 
enlarged  by  order  of  the  court,  otherwise  the  exceptant 
shall  as  of  course  be  entitled  to  take  the  bill,  so  far  as  the 
matter  of  such  exceptions  is  concerned,  as  confessed,  or,  at 
his  election,  he  may  have  a  writ  of  attachment  to  compel 
the  party  answering  to  make  a  better  answer  to  the  mat- 
ter of  the  exception ;  and  the  party  answering,  when  he  is 
in  custody  upon  such  writ,  shall  not  be  discharged  there- 
from but  by  an  order  of  the  court  or  of  a  law  judge  thereof, 
upon  his  putting  in  such  answer  and  complying  with  such 
other  terms  as  the  court  or  judge  may  direct. 

Rule  45.  No  order  shall  be  made  by  any  judge,  for 
hearing  any  bill,  answer,  or  pleading,  or  other  matter,  or 

597* 


EQUITY  RULES.  Rules  45-47 

Exceptions  to  Answers — Replications. 

proceeding  depending  before  the  court  for  scandal  or  im- 
pertinence, unless  exceptions  are  taken  in  writing,  and 
signed  by  counsel,  describing  the  particular  passages  which 
are  considered  to  be  scandalous  or  impertinent;  nor  unless 
the  exceptions  shall  be  filed  within  ten  days  after  service  of 
the  same  upon  the  party  excepting  or  his  counsel,  and 
such  exceptions  may  be  set  down  for  hearing  by  either 
party  on  forty-eight  hours'  notice,  or  such  other  notice  as 
the  court  may  direct  to  the  opposite  party. 

REPLICATIONS. 

Rule  46.  Whenever  the  answer  of  the  defendant  shall 
not  be  excepted  to,  or  shall  be  adjudged  or  deemed  suffi- 
cient, the  plaintiff  shall  file  the  general  replication  thereto 
within  ten  days  thereafter,  unless  he  shall  set  the  cause 
down  on  bill  and  answer;  and  in  all  cases  where  the  general 
replication  is  filed,  the  cause  shall  be  deemed  to  all  intents 
and  purposes  at  issue,  without  any  rejoinder  or  other  plead- 
ing on  other  side.  If  the  plaintiff  shall  omit  or  refuse  to 
file  such  replication  within  the  prescribed  period,  the  de- 
fendant shall  be  entitled  to  a  rule  upon  him  to  reply  with- 
in ten  days  after  notice  of  such  rule;  on  failure  to  file  such 
replication  with  notice  to  the  defendant's  counsel,  the 
plaintiff  shall  be  deemed  to  have  abandoned  his  right  to 
traverse  the  matters  alleged  in  the  answer.  The  replica- 
tion shall  be  in  substance  thus:  "The  plaintiff  joins  issue 
on  the  matters  alleged  in  the  answer." 

Rule  47.  No  special  replication  to  any  answer  shall  be 
filed.  But  if  any  matter  alleged  in  the  answer  shall  make 
it  necessary  for  the  plaintiff  to  amend  his  bill,  he  may  have 
leave  to  amend  the  same  upon  motion  to  the  court  or  a 
law  judge  thereof  in  vacation. 

598* 


Rules  48-50  EQUITY  RULES. 


Amendments,  Supplemental  Bills,  etc. 


AMENDMENTS,  SUPPLEMENTAL  BILLS,  ETC. 

Rule  48.  The  plaintiff  shall  be  at  liberty,  as  a  matter  of 
course,  to  amend  his  bill  in  any  matters  whatsoever,  before 
answer  or  demurrer  to  the  bill,  but  he  shall,  without  delay, 
give  the  defendant  notice  of  such  amendment,  and  all  rules 
taken  by  the  plaintiff  in  the  case  shall  be  suspended  until 
such  notice  is  given. 

Rule  49.  After  an  answer  or  demurrer  is  put  in  and  be- 
fore replication,  the  plaintiff  may,  upon  motion  or  petition, 
without  notice,  obtain  an  order  from  any  law  judge  of  the 
court  to  amend  his  bill  within  twenty  days  thereafter.  But 
after  the  replication  filed  the  plaintiff  shall  not  be  permit- 
ted to  withdraw  it  and  to  amend  his  bill,  except  upon  an 
order  of  a  law  judge  of  the  court,  upon  motion  or  petition, 
after  due  notice  to  the  other  party,  and  upon  proof  by  affi- 
davit that  the  same  is  not  made  for  the  purpose  of  vexa- 
tion or  delay,  or  that  the  matter  of  the  proposed  amend- 
ment is  material,  and  could  not  with  reasonable  diligence 
have  been  sooner  introduced  into  the  bill,  and  upon  the 
plaintiff's  submitting  to  such  other  terms  as  may  be  im- 
posed by  the  judge  for  speeding  the  cause. 

Rule  50.  If  the  plaintiff,  so  obtaining  any  order  to 
amend  his  bill  after  answer,  or  demurrer,  or  after  replica- 
tion, shall  not  file  his  amendments  or  amended  bill,  as  the 
case  may  require,  in  the  prothonotary's  office,  and  serve  a 
copy  on  the  counsel  of  all  other  parties  to  the  cause,  who 
appear  by  counsel  within  the  time  appointed  for  making 
such  amendments,  he  shall  be  considered  to  have  aband- 
oned the  same,  and  the  cause  shall  proceed  as  if  no  appli- 
cation for  any  amendment  had  been  made. 

Rule  51.     In  every  case  where,  after  answer  or  demurrer 

599* 


EQUITY  RULES.  Rules  51-53 

Amendments,  Supplemental  Bills,  etc. 

filed,  an  amendment  of  the  bill  is  made  in  such  particulars 
as  to  vary  the  case  or  the  grounds  of  relief,  the  defendants 
shall  be  at  liberty  to  demur  or  answer  to  the  amended  bill 
or  to  the  amendments,  as  if  no  previous  answers  had  been 
filed,  and  the  answer  to  the  original  bill  shall  not,  unless 
the  defendant  fails  to  put  in  another  answer  when  required, 
be  used  except  as  an  admission  of  the  facts  therein 
stated,  subject  to  explanation  by  the  answer  subsequently 
filed.  Answers  to  amendments  may  be  required  at  such 
times  as  the  court  or  a  law  judge  upon  notice  shall  direct, 
and  shall  be  in  other  respects  subject  to  the  rules  regulat- 
ing answers  to  the  original  bill. 

Rule  52.  After  an  answer  is  put  in,  it  may  be  amended 
as  of  course,  in  any  matter  of  form,  or  by  filling  up  a  blank, 
or  correcting  a  date,  or  reference  to  a  document,  or  other 
small  matter,  and  be  resworn,  at  any  time  before  replica- 
tion is  put  in,  or  the  cause  is  set  down  for  a  hearing  upon 
bill  and  answer.  But  after  replication  or  such  setting  down 
for  a  hearing,  it  shall  not  be  amended  in  any  material  mat- 
ters; as  by  adding  new  facts  or  defences,  or  qualifying  or 
altering  the  original  statements,  except  by  special  leave  of 
the  court  or  a  law  judge  thereof,  upon  motion  and  cause 
shown  after  due  notice  to  the  adverse  party,  supported,  if 
required,  by  affidavit.  And  in  every  case  where  leave  is  so 
granted,  the  court  or  the  judge  granting  the  same  may,  in 
his  discretion,  require  that  the  same  be  separately  en- 
grossed and  added  as  a  distinct  amendment  to  the  original 
answer,  so  as  to  be  distinguishable  therefrom. 

Rule  53.  Whenever  the  circumstances  are  such  as  to 
require  a  bill  of  revivor,  supplemental  bill,  or  bill  in  the 
nature  of  either  or  both,  or  where  additional  or  diffierent 
parties  are  required  to  be  joined,  the  same  shall  be  made 

600* 


Rules  53,54  EQUITY  RULES. 


Amendments,  Supplemental  Bills,  etc. — Evidence. 

by  way  of  amendment  or  addition  to  the  original  bill,  and 
copies  of  such  amendments  or  additions  being  served  on 
the  parties  to  the  original  bill,  or  their  counsel,  on  the  rec- 
ord, shall  entitle  the  plaintiff  to  proceed  as  on  an  original 
bill,  after  service.  Where  a  new  party  is  joined  a  copy  of 
the  original  bill  and  the  amendment  shall  be  served  as  is 
provided  for  in  the  case  of  original  bills.  But,  where  the 
personal  representative  of  a  deceased  party  is  properly  re- 
quired to  be  joined,  it  may  be  done  by  stating  on  the  record 
the  fact  of  the  death,  and  the  grant  of  letters  to  such  repre- 
sentative, and  by  service  of  notice  of  such  statement  on 
such  representative;  and  the  cause,  without  more  delay, 
shall  proceed  as  if  such  representative  had  been  originally 
a  party,  allowing  him  ten  days  to  appear. 

EVIDENCE. 

Rule  54.  An  order  to  take  the  testimony  of  ancient,  in- 
firm and  going  witnesses  de  bene  esse  before  any  justice 
of  the  peace  or  other  person,  authorized  by  law  to  take  de- 
positions in  other  cases,  may  be  entered  by  either  party  in 
the  prothonotary's  office  of  course,  at  any  time  after  the 
service  of  process,  stipulating  a  reasonable  notice  to  the 
adverse  party;  so  of  an  order  for  a  commission  to  any  place 
within  the  State  of  Pennsylvania  more  than  forty  miles 
distant  from  the  county  seat  of  the  respective  county,  or  to 
any  other  state  or  territory  or  to  foreign  parts.  But  in  case 
of  a  commission,  the  interrogatories  must  be  filed  in  the 
prothonotary's  office  at  the  time,  and  written  notice  of  this 
last  order  and  of  the  names  of  the  commissioners  must  be 
served  on  the  adverse  party  at  least  fifteen  days  before  the 
commission  issues,  in  order  that  he  may  file  cross-interro- 
gatories, or  nominate  commissioners  on  his  part,  if  he  shall 

601* 


EQUITY  RULES.  Rules  54-57 

Evidence. 

deem  it  desirable:  Provided,  That  testimony  so  taken 
shall  only  be  admitted  on  the  hearing  of  the  cause,  when 
the  circumstances  are  such  as  would  excuse  the  produc- 
tion of  such  witnesses  and  make  admissible  depositions 
taken  de  bene  esse  on  trials  by  jury  in  the  same  courts. 

Rule  55.  Upon  the  return  of  any  commission  executed, 
the  same  may,  at  the  application  of  either  party,  be  opened 
by  any  one  of  the  judges  of  the  court,  in  term  time  or  vaca- 
tion, or  by  the  prothonotary;  and  the  prothonotary  shall 
give  notice  to  the  parties  of  the  return  of  any  commission, 
and  of  the  filing  of  depositions  taken  before  any  justice  of 
the  peace,  or  other  person,  and  the  parties  shall,  within  ten 
days  after  service  of  such  notice  upon  them  respectively, 
enter  exceptions  in  writing,  if  they  have  any,  to  the  form  of 
the  interrogatories  or  the  manner  of  the  execution  of  the 
commission,  and  the  taking  of  the  depositions,  or  be  there- 
after precluded  from  the  benefit  of  such  exceptions,  which 
exceptions  when  so  taken  may  be  put  down  for  hearing  by 
either  party  giving  forty-eight  hours'  notice  to  his  adver- 
sary thereof,  or  such  other  notice  as  the  court  may  direct. 

Rule  56.  The  last  of  the  interrogatories  to  take  testi- 
mony shall  be  stated  in  substance,  thus:  "Do  you  know, 
or  can  you  set  forth  any  other  matter  or  thing,  which  may 
be  a  benefit  or  advantage  to  the  parties  at  issue  in  this 
cause,  or  either  of  them,  or  that  may  be  material  to  the 
subject  of  this  your  examination,  or  the  matters  in  ques- 
tion in  this  cause?  If  yea,  set  forth  the  same  fully  and  at 
large  in  your  answer." 

Rule  57.  All  affidavits  and  depositions  shall  be  taken 
and  expressed  in  the  first  person  of  the  deponent ;  and  shall 
be  divided  into  paragraphs,  and  each  paragraph,  as  nearly 
as  may  be,  confined  to  a  distinct  portion  of  the  subject. 

602* 


Rules  58-60  EQUITY  RULES. 

Evidence — Trial. 


Rule  58.  On  all  interlocutory  applications,  as  for  an  in- 
junction, or  the  appointment  of  a  receiver,  either  party 
shall  be  at  liberty  to  produce  his  witnesses  for  examina- 
tion in  open  court  at  the  hearing  of  the  application,  as  to  all 
such  matters  as  could  be  proved  by  their  affidavits,  subject 
to  cross-examination  as  in  other  cases,  or  upon  reasonable 
notice,  to  require  the  other  party  to  produce  his  witnesses 
for  examination  in  open  court,  unless  sufficient  cause  be 
shown  to  the  contrary. 

Rule  59.  The  office  of  Examiner  to  take  testimony,  is 
hereby  discontinued,  except  in  proceedings  conducted 
under  the  directions  of  a  statute  by  which  duties  are  im- 
posed upon  an  Examiner,  as  in  bills  to  perpetuate  testi- 
mony and  similar  cases.  All  testimony  in  cases  in  equity 
shall  be  taken  in  the  same  manner  as  is  now  practiced  in 
courts  of  law,  upon  rule,  commission,  letters  rogatory,  or 
in  open  court.  Rules  may  be  entered  for  the  purpose  of 
taking  testimony  on  the  equity  side  of  the  several  Courts 
of  Common  Pleas,  in  the  same  manner,  and  with  the  same 
effect,  as  upon  the  common  law  side  of  the  same  courts. 

TRIAL. 

Rule  60.  The  hearing  of  cases  in  equity  shall  be  con- 
ducted before  the  Judge  sitting  as  Chancellor,  or  before  a 
referee,  and  the  office  of  Master  in  Chancery  is  hereby  dis- 
continued, except  in  proceedings  where  decrees  or  inter- 
locutory orders  are  to  be  executed,  or  their  execution 
supervised  by  an  officer  of  the  court;  as  in  partition,  the 
sale  of  real  estate,  the  execution  of  deeds  and  the  like. 
When  a  case  in  equity  is  at  issue  upon  demurrer  it  shall  be 
placed  on  the  argument  list  then  next  to  be  heard.  When 
it  is  at  issue  upon  answer  it  shall  be  placed  on  the  equity 

6o3* 


EQUITY  RULES.  Rules  60-63 

Trial. 

trial  list.  Cases  upon  the  trial  list  shall  be  heard  in  court 
in  the  same  manner  that  actions  at  law  wherein  trial  by 
jury  has  been  waived  are  now  heard  by  courts  of  law.  The 
evidence  shall  be  given  or  read  in  open  court,  and  excep- 
tions to  the  admission  or  rejection  of  evidence  and  of  wit- 
nesses, may  be  taken  in  the  same  manner,  and  with  the 
same  effect  as  is  now  practiced  in  the  trial  of  actions  at 
law.  The  Judge  shall  sit  continuously  during  the  trial  of 
causes  in  equity  in  the  same  manner  as  during  the  trial  of 
actions  at  law. 

Rule  61.  A  trial  in  equity  shall  be  conducted,  as  nearly 
as  may  be,  as  a  trial  at  law  is  now  conducted.  When  en- 
tered upon  it  shall  not  be  interrupted  or  postponed,  except 
for  cause  shown  to,  and  approved  by,  the  court  or  referee ; 
and  the  costs  of  all  such  postponements  shall  be  paid  by 
the  party  at  whose  instance  the  same  may  be  ordered,  and 
shall  not  abide  the  result,  or  be  taxed  in  the  general  bill  of 
the  successful  party.  Continuances  for  cause  may  be  made 
where  the  list  is  called,  with  or  without  terms,  as  is  now 
practiced  in  the  courts  of  common  law. 

Rule  62.  The  counsel  for  the  respective  parties  may 
present  to  the  Judge,  sitting  as  Chancellor,  requests  for 
findings  both  of  fact  and  law.  After  hearing  the  evidence, 
and  the  argument  of  counsel,  the  Judge  may  adopt  or 
affirm  these  requests,  or  any  of  them,  qualify  or  deny  them, 
or  state  his  findings  of  fact  or  of  law  in  his  own  language. 
The  requests  so  presented,  with  the  answers  thereto,  and 
the  findings  of  the  Judge,  both  of  law  and  fact,  shall  be 
filed  by  the  prothonotary,  and  become  thereby  part  of  the 
record  of  the  court  in  the  said  case. 

Rule  63.  Upon  the  filing  of  the  findings  by  the  Judge, 
the  prothonotary  shall  enter  a  decree  nisi  in  accordance 
therewith,  and  give  notice  to  the  parties  or  their  counsel. 

604* 


Rules  64-69  EQUITY  RULES. 

Trial — Referees 


Rule  64.  Exceptions  may  then  be  filed  by  either  party 
within  ten  days,  which  exceptions  shall  cover  all  objec- 
tions to  rulings  on  evidence,  to  findings  of  fact  or  law,  or 
to  the  decree  in  the  case. 

Rule  65.  If  no  exceptions  be  filed,  all  objections  shall 
be  deemed  to  be  waived  and  a  final  decree  entered  by  the 
prothonotary  as  of  course. 

Rule  66.  If  exceptions  shall  be  filed,  they  shall  be  heard 
upon  the  argument  list  as  upon  a  rule  for  new  trial,  and  the 
judge  or  the  court  in  bane  shall  have  power  to  sustain  or 
dismiss  any  of  such  exceptions  and  confirm,  modify  or 
change  the  decree  accordingly. 

Rule  67.  Upon  appeal  to  the  Supreme  or  Superior 
Court  such  matters  only  as  have  been  so  excepted  to  and 
finally  passed  upon  by  the  court,  shall  be  assignable  for 
error. 

Rule  68.  If  the  judge  or  referee  upon  the  close  of 
complainant's  evidence  shall  be  of  opinion  that  the  case 
made  in  the  bill  has  not  been  sustained  he  shall  have  power 
to  enter  a  decree  of  dismissal  without  hearing  evidence  on 
behalf  of  the  defendant.  Such  decree  shall  have  the  effect 
of  a  non-suit  at  law,  but  a  refusal  of  the  court,  after  motion 
and  argument,  to  change  the  decree  shall  be  considered 
a  final  decree  for  all  purposes.  The  court  in  bane  in  every 
such  case  shall  file  an  opinion  specifically  setting  forth  its 
reasons  for  refusing  to  change  the  decree  of  dismissal. 


Rule  69.  When  a  case  in  equity  is  at  issue  upon  answer 
it  may  be  taken  from  the  list  by  the  parties,  and  its  trial  re- 
ferred to  a  person  agreed  upon  by  them,  who  shall  be  called 
a  "referee."  He  shall  proceed  at  once  upon  his  appoint- 
ment to  fix  a  day  for  trial,  which  shall  not  be  more  than 

605* 


EQUITY  RULES.  Rules  69,  70 


Referees — Fees. 


three  months  after  his  said  appointment;  at  which  time, 
unless  the  cause  be  continued,  he  shall  proceed  to  hear  the 
parties,  and  sit  from  day  to  day,  continuously  for  that  pur- 
pose. He  shall  hear  the  testimony,  seal  bills  of  exceptions 
to  the  admission  and  rejection  of  evidence,  make  findings 
of  fact  and  of  law,  act  upon  the  points  or  requests  that  may 
be  presented  by  counsel,  and  prepare  the  form  for  a  final 
decree.  When  his  findings  and  decree  are  ready,  he  shall 
give  notice  to  counsel  for  the  respective  parties,  of  a  time 
and  place,  when  and  where  the  same  may  be  examined  by 
them.  If  no  exceptions  be  filed  within  ten  days  after  the 
day  fixed  for  such  examination,  the  referee  shall  deliver  to 
the  prothonotary  his  findings,  the  requests  of  counsel,  and 
the  form  of  decree  prepared,  who  shall  file  the  same,  and 
thereupon  the  court  shall  enter  the  decree  prepared  by  the 
referee.  If  exceptions  be  filed  the  referee  shall  hear  them 
within  ten  days  thereafter;  and  within  ten  days  after  such 
hearing,  decide  upon  the  same  and  file  said  exceptions,  his 
action  thereon,  together  with  his  original  findings,  the 
requests  of  counsel,  and  the  form  of  a  decree  with  the  pro- 
thonotary of  the  court.  At  any  time  within  ten  days  after 
this  is  done  exceptions  may  be  taken  to  the  action  of  the 
referee  and  filed  with  the  prothonotary.  The  case  shall 
thereupon  be  placed  upon  the  equity  argument  list  next  to 
be  heard  in  said  court,  and  the  exceptions  heard  by  the  court 
or  judge  acting  as  Chancellor  in  the  case,  and  disposed  of; 
whereupon  the  proper  decree  shall  be  made  and  entered, 
subject  to  the  right  of  appeal  to  the  Supreme  or  Superior 
Court,  as  provided  by  law. 

FEES. 

Rule  70.     The  fees  of  referees  shall  be  adjusted  upon  a 
statement  of  the  number  of  days  actually  occupied  with  the 

606* 


Rules  70-72  EQUITY  RULES. 


Fees — Assessors — Trial  by  Jury. 


trial  and  the  preparation  of  the  findings  and  decree.  Parts 
of  days  on  which  the  parties  met  and  adjourned  shall  not 
be  included.  For  days  actually  spent  in  trial  and  dispo- 
sition of  the  case  a  per  diem  shall  be  allowed,  to  be  fixed 
by  the  court  in  which  the  cause  is  pending,  upon  considera- 
tion of  the  character  of  the  labor  actually  performed,  but 
in  no  case  to  exceed  twenty  dollars  per  day.  The  referee 
shall  state  separately  the  number  of  days  occupied  in  the 
trial,  and  those  occupied  in  preparing  the  findings  and  de- 
cree. For  parts  of  days  on  which  meetings  and  adjourn- 
ments have  taken  place  the  referee  shall  be  allowed  five 
dollars  each,  to  be  paid  by  the  party  at  whose  instance  the 
adjournment  may  be  made,  and  not  otherwise. 

ASSESSORS. 

Rule  71.  In  cases  involving  complicated  accounts  or 
questions  requiring  the  aid  of  experts,  if  the  parties  do  not 
refer,  the  court  may  call  in  the  aid  of  an  accountant  or 
other  expert,  as  an  assessor.  The  charges  to  be  allowed 
for  such  services  shall  not  exceed  the  rate  per  diem  com- 
monly paid  by  business  men  for  similar  services,  and  shall 
be  taxed  as  costs  in  the  case,  or  paid  as  the  court  may 
direct. 

TRIAL  BY  JURY. 

Rule  72.  After  a  case  in  equity  is  at  issue  upon  ques- 
tions of  fact,  either  party  may  move  a  rule  upon  the  other 
party  to  show  cause,  on  five  days'  notice,  why  the  issues 
of  fact,  or  some  of  them,  shall  not  be  tried  before  a  jury. 
If,  on  the  return  of  the  rule,  such  trial  be  awarded,  the 
court  shall  frame  the  issues  in  the  form  of  separate  ques- 
tions. The  verdict  rendered  shall  not  be  general,  but  shall 

607* 


EQUITY  RULES.  Rules  72-75 


Trial  and  Argument  Lists — Interlocutory  Orders,  Generally. 

consist  of  an  answer  to  each  question  so  submitted.  These 
answers,  made  to  inform  the  conscience  of  the  Chancellor, 
shall  not  be  binding  upon  him  in  any  case. 

TRIAL  AND  ARGUMENT  LISTS. 

Rule  73.  The  preparation  of  trial  and  argument  lists 
shall  be  regulated  by  an  order  of  the  several  courts,  so  as 
to  make  the  practice  in  regard  thereto  conform  as  nearly 
as  may  be  practicable  to  the  practice  in  the  said  courts  in 
actions  at  law. 

INTERLOCUTORY  ORDERS,  GENERALLY. 

Rule  74.  Any  law  judge  in  vacation  or  in  term,  may  at 
chambers  make  interlocutory  orders,  rules,  and  other  pro- 
ceedings preparatory  to  the  hearing  of  causes  upon  their 
merits,  in  the  same  manner  and  with  the  same  effect  as  the 
court  in  term,  reasonable  notice  of  the  same  being  first 
given  to  the  adverse  party  or  his  solicitor,  to  appear  and 
show  cause  to  the  contrary,  at  such  time  thereafter  as 
shall  be  assigned  by  the  judge  for  the  hearing  thereof. 

Rule  75.  All  motions,  rules,  orders,  and  other  proceed- 
ings made  and  directed  at  chambers  or  at  the  prothono- 
tary's  office,  whether  special  or  of  course,  shall  be  entered 
by  the  prothonotary  in  his  docket,  on  the  day  on  which 
they  are  made  and  directed,  and  notice  thereof  given  to  the 
solicitors  shall  be  deemed  notice  to  the  parties  for  whom 
they  appear  and  whom  they  represent,  in  all  cases  in  which 
personal  notice  on  the  parties  is  not  otherwise  specially 
required.  The  docket  shall  be  kept  by  the  prothonotary 
at  his  office,  and  shall  be  open  at  all  office  hours  to  the  free 
inspection  of  the  parties  in  any  suit  in  equity,  and  their 
solicitors.  All  notices  shall  be  in  writing. 

608* 
37b 


Rules  76-79  EQUITY  RULES. 


Interlocutory  Orders,  Generally. 


Rule  76.  All  motions  and  applications  in  the  prothono- 
tary's  office  for  the  issuing  of  mesne  and  final  process  (ex- 
cept process  of  sequestration  and  of  attachment  to  enforce 
and  execute  decrees) ;  for  filing  bills,  answers,  demurrers, 
and  other  pleadings;  for  making  amendments  to  bills  and 
answers;  for  taking  bills  pro  confesso;  for  filing  excep- 
tions, and  for  other  proceedings  which  do  not  require  al- 
lowance or  order  of  the  court,  or  of  a  judge  thereof,  shall 
be  deemed  motions  and  applications  grantable  of  course 
by  the  prothonotary  of  the  court ;  but  the  same  may  be  sus- 
pended, altered,  or  rescinded  by  any  law  judge  of  the 
court  upon  cause  shown. 

Rule  77.  All  motions  for  rules  or  orders,  and  other  pro- 
ceedings which  are  not  grantable  of  course,  or  without 
notice,  shall  be  made  on  application  to  the  court  or  a  law 
judge  at  chambers,  and  entered  in  the  docket,  and  shall  be 
heard  at  such  time  thereafter  as  shall  be  assigned  therefor 
by  the  court  or  judge  at  the  time  of  the  making  the  appli- 
cation; and  if  the  adverse  party  or  his  solicitor,  after  no- 
tice thereof,  shall  not  then  appear,  or  shall  not  show  good 
cause  against  the  same,  the  motion  may  be  heard  by  any 
law  judge  of  the  court,  ex  parte,  and  granted,  as  if  not  ob- 
jected to,  or  refused,  in  his  discretion. 

Rule  78.  No  order  allowing  further  time  shall  be  made 
without  written  notice  of  the  application  for  such  order  to 
the  counsel  on  record  of  the  opposite  party;  and  any  order 
which  does  not  recite  such  notice,  or  that  the  counsel  at- 
tended at  the  hearing  may  be  disregarded. 

Rule  79.  In  the  City  of  Philadelphia  all  rules  or  orders 
as  to  pleadings  which,  according  to  the  time  prescribed  in 
the  foregoing  rules,  would  otherwise  expire  on  any  day  of 
the  months  of  July  and  August,  shall  be  deemed  and  taken 

609* 


EQUITY  RULES.  Rules  80-82 


Interlocutory  Orders,  Generally — Injunctions. 


to  expire  on  the  same  day  of  the  month  of  September  fol- 
lowing. 

Rule  80.  If,  on  any  interlocutory  proceeding,  a  party 
shall  be  ordered  to  pay  the  costs  thereof,  such  costs  shall 
be  taxed  by  the  prothonotary,  and  payment  thereof  may  be 
enforced  by  attachment  and  sequestration,  or  the  party 
to  whom  the  said  costs  are  directed  to  be  paid  may,  at  his 
option,  have  a  common  law  writ  of  execution  for  the  re- 
covery thereof;  and  the  party  against  whom  such  order  is 
made  shall  not  be  allowed  to  take  any  further  steps  in  the 
cause  until  payment  of  such  costs. 

INJUNCTIONS. 

Rule  81.  Preliminary  injunctions  may  be  granted,  in 
accordance  with  the  present  practice,  on  bill  and  injunc- 
tion affidavits;  but  upon  the  hearing,  at  the  end  of  five 
days,  or  such  other  time  as  may  be  fixed,  the  evidence 
must  be  taken  subject  to  cross-examination,  and  ex  parte 
affidavits  will  not  be  received.  Witnesses  may  be  exam- 
ined orally  before  the  judge,  or  testimony  may  be  taken  on 
short  rule,  or,  when  necessary,  testimony  may  be  taken 
before  any  person  authorized  to  administer  an  oath,  on 
notice  to  the  other  side  to  appear  and  cross-examine.  In 
cases  where  testimony  is  taken  on  notice  alone,  the  certi- 
ficate of  counsel  that  he  had  not  sufficient  time  to  enter  and 
serve  a  rule,  shall  stand  in  lieu  of  such  formal  entry  and 
service.  But  defendant  may  move  to  dissolve  at  any  time 
without  waiting  for  the  expiration  of  the  five  days. 

Rule  82.  Cautionary  orders  in  injunction  bills  shall  not 
be  made,  nor  shall  any  injunction  be  allowed  except  secur- 
ity be  given  according  to  law.  But  whenever  an  injunc- 
tion shall  be  granted  without  previous  notice  to  the  oppo- 

610* 


Rules  83,  84  EQUITY  RULES. 

Decrees  and  Final  Process. 

site  party,  it  shall  be  taken  to  be  dissolved  if  the  motion 
be  not  argued  within  five  days  after  such  notice  given,  un- 
less otherwise  specially  ordered  by  the  court  or  a  law  judge 
thereof. 

DECREES  AND  FINAL  PROCESS. 

Rule  83.  No  part  of  the  prior  proceedings  shall  be  re- 
cited or  stated  at  length  in  any  decree  or  order;  but  de- 
crees and  orders  shall  begin  in  substance  as  follows :  "This 
cause  came  on  to  be  heard  (or  to  be  further  heard,  as  the 
case  may  be)  at  this  term,  and  was  argued  by  counsel,  and 
upon  consideration  thereof,  it  is  ordered,  adjudged,  and 
decreed  as  follows,  viz:"  (Here  insert  the  decree  or 
order.) 

Rule  84.  The  decree  shall  be  drawn  by  the  solicitor  of 
the  party  in  whose  favor  it  is,  who  shall,  unless  otherwise 
herein  provided,  serve  a  copy  thereof  on  the  solicitor  of 
the  adverse  party,  with  notice  of  the  time,  which  shall  not 
be  less  than  three  days  thereafter,  when  the  same  will  be 
submitted  to  the  court;  but  the  court  may  direct  the  decree 
to  be  entered  forthwith,  without  further  notice,  upon  the 
same  being  pronounced,  should  they  think  the  justice  of 
the  case  requires  it,  or  when  the  solicitor  of  the  opposite 
party  is  present,  and  does  not  object  to  the  form  thereof. 
If  the  opposite  party,  where  notice  is  required  to  be  given 
to  him,  shall  not  deem  such  draft  of  decree  in  conformity 
with  the  intentions  of  the  court,  he  may  file  exceptions 
thereto  before  the  day  of  hearing  designated  in  such  no- 
tice, which  shall  be  submitted  with  the  draft  of  the  decree 
on  the  day  so  appointed,  and  thereupon,  the  court  approv- 
ing of  the  draft,  or  correcting  the  same  in  conformity  with 
such  exceptions,  or  otherwise,  the  prothonotary  shall  enter 

611* 


EQUITY  RULES.  Rules  85-88 

Decrees  and  Final  Process. 

it  in  his  docket,  and  from  thenceforth  it  shall  be  the  act 
and  decree  of  the  court. 

Rule  85.  If  the  decree  or  order  be  merely  for  the  pay- 
ment of  money,  the  party  in  whose  favor  it  is  made  shall 
be  entitled  to  have  a  minute  thereof  (without  waiting  for 
the  draft  of  a  more  formal  decree)  entered  in  the  docket 
and  placed  in  the  usual  form  of  entering  judgments  in  the 
judgment  index  of  the  common  law  side  of  the  court. 

Rule  86.  Unless  otherwise  provided  by  law  or  by  these 
rules,  or  specially  ordered  by  the  court,  a  writ  of  attach- 
ment, and  if  the  defendant  cannot  be  found,  or  it  may  be 
otherwise  thought  proper  by  the  court,  a  writ  of  seques- 
tration or  a  writ  of  assistance  to  enforce  a  delivery  of  pos- 
session, as  the  case  may  require,  shall  be  the  proper  pro- 
cess to  issue  for  the  purpose  of  compelling  obedience  to 
any  interlocutory  or  final  order  or  decree  of  the  court ;  but 
the  same  shall  not  be  issued,  unless  upon  motion  and  al- 
lowance by  the  court  or  a  law  judge  thereof. 

Rule  87.  When  any  decree  or  order  is  for  the  delivery 
of  possession,  upon  proof  made  by  affidavit  of  a  demand 
and  refusal  to  obey  the  decree  or  order,  the  party  prose- 
cuting the  same  shall  be  at  liberty  to  apply  forthwith  to 
the  court  or  to  a  law  judge,  for  an  order  for  a  writ  of  as- 
sistance, upon  the  allowance  of  which  the  prothonotary 
shall  immediately  issue  the  same. 

Rule  88.  Final  process  to  execute  any  decree  may,  if 
the  decree  be  solely  for  the  payment  of  money,  be  by  a 
writ  of  execution,  in  the  form  used  in  the  same  court  in 
suits  at  common  law  in  actions  of  assumpsit.  If  the  decree 
be  for  the  performance  of  any  specific  act,  as,  for  example, 
for  the  execution  of  a  conveyance  of  land  or  delivering  up 
of  deeds  or  other  documents,  the  decree  shall  prescribe  the 

612* 


t 

Rules  88-91  EQUITY  RULES. 


Decrees  and  Final  Process — Rehearing. 


time  within  which  the  act  shall  be  done,  of  which  the  de- 
fendant shall  be  bound,  without  further  service,  to  take 
notice;  and  upon  affidavit  of  the  plaintiff,  filed  in  the  pro- 
thonotary's  office,  that  the  same  has  not  been  complied 
with,  the  court,  if  sitting,  or  any  law  judge  during  vaca- 
tion, may  direct  the  issuing  of  a  writ  of  attachment  against 
the  delinquent  party,  from  which,  if  attached  thereon,  he 
shall  not  be  discharged  unless  upon  a  full  compliance  with 
the  decree  and  the  payment  of  costs,  or  upon  a  special 
order  of  the  court  or  of  a  law  judge  thereof,  upon  motion 
and  affidavit,  enlarging  the  time  for  the  performance 
thereof.  If  the  delinquent  party  cannot  be  found,  a  writ 
of  sequestration  may,  upon  motion,  be  ordered  by  the 
court  or  a  law  judge  thereof,  to  be  issued  against  his  estate 
upon  the  return  of  non  est  inventus,  to  compel  obedience 
to  the  decree. 

Rule  89.  Every  person  not  being  a  party  in  any  cause, 
who  has  obtained  an  order,  or  in  whose  favor  an  order  shall 
have  been  made,  shall  be  enabled  to  enforce  obedience  to 
such  order  by  the  same  process  as  if  he  were  a  party  to  the 
cause;  and  every  person  not  being  a  party  to  the  cause 
against  whom  obedience  to  an  order  of  the  court  may  be 
enforced,  shall  be  liable  to  the  same  process  for  enforcing 
obedience  to  such  order,  as  if  he  were  a  party  in  the  cause. 

Rule  90.  Clerical  mistakes  in  decrees  or  decretal  orders, 
or  errors  arising  from  any  accidental  slip  or  omission,  may 
be  corrected  by  order  of  the  court  or  a  law  judge  thereof, 
upon  petition,  without  the  form  or  expense  of  a  rehearing. 

REHEARING. 

Rule  91.  Every  petition  for  a  rehearing  shall  contain 
the  special  matter  or  cause  on  which  such  rehearing  is  ap- 

613* 


EQUITY  RULES.  Rules  91-94 

Rehearing — General   Provisions. 

plied  for,  shall  be  signed  by  counsel,  and  the  facts  therein 
stated,  if  not  apparent  on  the  record,  shall  be  verified  by 
the  oath  of  the  party,  or  by  some  other  person.  A  rehear- 
ing may  be  granted  at  any  time  within  the  discretion  of  the 
court;  but  where  the  decree  has  been  executed,  parties 
who  have  acted  on  the  faith  of  such  decree  shall  not  be 
prejudiced  by  such  decree  being  reversed  or  varied. 

Rule  92.  (Abrogated  and  annulled  by  order  of  July  6, 
1911,  to  take  effect  Sept.  4,  1911.) 

GENERAL  PROVISIONS. 

Rule  93.  The  courts  may  make  any  other  and  further 
rules  and  regulations  for  the  practice,  proceedings  and  pro- 
cess, mesne  and  final,  in  their  respective  districts,  not  in- 
consistent with  the  rules  hereby  prescribed,  in  their  dis- 
cretion, and  from  time  to  time  alter  and  amend  the  same. 

Rule  94.  In  all  cases  when  these  rules  or  those  pre- 
scribed by  other  courts  do  not  apply,  the  practice  of  the 
courts  shall  be  regulated  by  the  present  practice  of  the 
high  court  of  chancery  in  England,  so  far  as  the  same  may 
reasonably  be  applied  consistently  with  the  local  circum- 
stances and  local  convenience  of  the  district  where  the 
court  is  held,  not  as  positive  rules,  but  as  furnishing  just 
analogies  to  regulate  the  practice. 


614* 


EQUITY  RULES. 
Index. 


INDEX— EQUITY   RULES 

[ORIGINALLY    PREPARED    BY    GEORGE    J.    CAMPBELL,    ESQ.,    PITTSBURGH,    PA.] 

ACCOUNTANT  (See  Assessor): 

AFFIDAVITS:    (See  Demurrer;  Depositions;  Notice;  Publica- 
tion). Rule. 

Before  Whom,  May  Be  Made   41 

On  Enforcement  of  Decrees  88 

On  Making  Amendments  49 

On  Petition  for  Rehearing 91 

To  Be  in  First  Person  and  Divided  into  Paragraphs 57 

Will  Not  Be  Heard,  Ex  Parte,  on  Injunction  81 

AGREEMENT: 

Parties  May  Agree  in  Writing  to  Dismiss  Bill 28 

Payment  of  Costs  on  28 

To  Be  Entered  on  Docket 28 

AMENDMENTS  (Rules  48-53);  (See  Bill  of  Revivor;  Errors) : 

After  Answer,  Demurrer  or  Replication  35,  49,  51 

Answers  May  Be  Amended  43,  52 

Must  Be  Filed  Within  Time  Fixed  50 

Notice  of,  to  Be  Given  48 

Parties 27,  53 

Printing,  to  Pleadings   14 

Supplemental  Bill   53 

When  Amendments  to  Bill  May  Be  Filed 48 

ANSWERS  (Rules  37-45);  (Also  see  Cross  Bills;  Exceptions): 

Amendments    to    52 

Amendments  to,  After  Replication  Filed  52 

Case  on  Answer  to  Go  On  Trial  List 60 

Compelling  Answer  by  Process 29,  44 

Decree  Pro  Conf esso 4,  13,  30 

Demurrer 36,  37 

Interrogatories 38,  39,  42,  43 

How  and  to  What  Defendant  May 37 

How  Sworn  to  41 

Parties  Against  Whom  no  Direct  Relief  is  Sought 18 

Reply  to  Matters  of  Fact  Must  Be  by 31 

Rule  for  Answer  4,  5,  29 

Exceptions 42-46 

To  Amended  Bill    51 

When  No,  Is  Filed,  Order  May  Be  Entered  as  of  Course  . .     13 
When  to  Be  Filed   6,  29,  38 

616* 


EQUITY  RULES. 


Index. 


Rule. 
APPEALS  AND  ERROR: 

Appeal  Lies  Only  to  Matters  Excepted  to 67 

APPEARANCE  (See  also  Process  and  Appearance) : 

Decree  Pro  Conf  esso  for  Want  of  an 4,  5,  13 

Notice  Requiring  an   ^ 

On  Hearing  Interlocutory  Proceedings 74 

Penalty  on  Failure  to  Appear 4 

Substituted  Parties  53 

When  Parties  Shall  Appear 4,  18 

ARGUMENT  (Also  see  Argument  List) : 

As  to  Parties  to  a  Bill  27 

Plaintiff  May  Put  Down  Case  for,  After  Answer  Filed 27 

ARGUMENT  LIST  (See  also  Equity  Argument  List) : 

Cases  on  Demurrer 33,  60 

Exceptions  to  Go  on   66 

Form  for  Putting  on  Equity  Argument  List 27 

How  Made  Up       60,  73 

In  Ex  Parte  Proceedings   29 

ASSESSOR: 

Compensation  to  Be  Allowed 71 

Court  to  Appoint,  as  an  Expert 71 

ATTACHMENT: 

For  Discovery    29 

To  Enforce  Decrees  86-88 

To  Collect  Costs   80 

To  Compel  Answers    38,  44 

Plaintiff  May  Proceed  by,  When  No  Appearance  Filed  ....     13 

ATTORNEY  (See  Solicitor  and  Counsel) : 

BILLS  (See  Amendments;  Service) : 

Allegations  as  to  Capacity  of  Parties  in 19,  20 

Dismissing   28 

Impertinent   Matter    15 

Joining  New  Party  to 53 

Printing 3,  14 

Paper  to  Be  Used  in,  and  Size  of,  in  Printing 14 

Paragraphing  and  Numbering 17 

Scandalous  Matter  in    15 

Structure  of    15-17 

Taken  Pro  Confesso  4 

Time  Allowed  for  Exceptions  to  42 

What  Introduction  to,  Shall  Contain  16 

What  May  Be  Omitted  in  17 

617* 


EQUITY  RULES. 
Index. 

Rule. 
BILL  OF  REVIVOR: 

After  Service  of,  Plaintiff  May  Proceed  53 

When  Required   53 

CHANCELLOR  (See  Trial  Judge). 

COMBINATION  CLAUSE: 

To  Be  Omitted 17 

COMMISSIONS: 

Exceptions  to  Testimony  in   55 

How  Opened,  Upon  Its  Return 55 

Pleadings  for   1 

To  Take  Testimony 54 

COMMONWEALTH: 

When  Party,  How  Service  Is  to  Be  Made 10 

CONTEMPT: 

Plaintiff  May  Have  Process  for  29 

CONTINUANCE: 

How  Notice  Is  to  Be  Given  for 78 

When,  May  Be  Allowed 61 

CORPORATION: 

Service  of  Bill  on  10 

COSTS  (See  Fees) : 

Arising  Out  of  Postponements 61 

Of  Party  Against  Whom  no  Direct  Relief  is  Sought 18 

On  Exceptions 43 

Impertinent  Matter 15 

Must  Be  Paid  Before  Bill  Is  Dismissed 28 

Payment  of,  How  Enforced 80,  88 

Poverty  of  Client  to  Exempt  Him  from  Cost  of  Printing  . .  14 

Printing  Bill,etc.,  to  Be  Allowed  as 14 

COUNSEL  (Also  see  Solicitors) : 

Service  of  Exceptions  on 43 

To  Certify    as  to  Poverty  of  Client 14 

COURT: 

Application  to,  for  Orders,  Rules,  etc 77 

Can  Direct  Entry  of  Final  Decree  Without  Notice 84 

Decrees  as  to  Absent  Parties 26 

Discretion  of,  in  Cases  Allowing  a  Demurrer 35 

May  Appoint  Experts  as  Assessor 71 

May  Direct  Form  of  Service  in  Special  Cases  8 

May  Direct  How  Assessor's  Fees  Are  to  Be  Paid 71 

May  Dismiss  Bill  if  Plaintiff  Proceeds 27 

May  Dispense  With  Some  of  the  Parties 22 

618* 


EQUITY  RULES. 
Index. 

COURT— Continued :  Rule. 

May  Extend  Time  on  Motion 6 

May  Grant  Rehearing  on  Petition 91 

May  Hear  Exceptions  for  Impertinence  or  Scandal 15 

May  Make  Additional  Rules  Not  Inconsistent  with  Supreme 

Court's  Rules  93 

May  Make  Order  as  to  Costs  in  Cases  of  Poverty 14 

May  Make  Order  for  Service  on  Non-Resident 11 

Petition  to,  for  Guardians,  etc 7 

Special  Orders  for  Service  by  Publication 12 

To  Correct  Accidental  Errors 90 

To  Fix  Security 7 

To  Frame  Issue  for  Jury  Trial 72 

When  Demurrer  Is  Overruled 36 

CROSSBILL: 

By  Defendants,  Joint  and  Several,  Sureties,  etc 25 

Form  of  40 

No,  to  Be  Allowed  for  Discovery 40 

Service  of   40 

To  Be  Incorporated  in  Original 40 

DEATH: 

How  to  Be  Noted 53 

DECREES  (Rules  83-90) : 

By  Whom  Drawn 84 

Exceptions  to  Final  Decree 84 

How  Final,  to  Be  Enforced 88 

Filed  Nisi   : 63 

How  Made  Up  83 

On  Failing  to  Appear 4 

To  Be  Without  Prejudice  When  All  Parties  Are  Not  In- 
cluded       21,  22 

When  Considered  Final  68 

DECREES  NISI: 

When  Are  to  Be  Entered 63 

DECREES  PRO  CONTESSO  (Rules  29-36) : 

For  Want  of  an  Answer 13 

For  Want  of  an  Appearance   13 

In  Default  of  Demurrer,  etc 29 

On  Demurrer 36 

When  Deemed  Absolute 30 

DEFENDANT: 

Can  Object  for  Want  of  Proper  Parties 26 

Can  Put  Case  on  Argument  List  if  Plaintiff  Does  Not 33 

Form  of  Service  on 8 

Interrogations  to,  Not  to  Be  Included  in  Bill 38 


619 


* 


EQUITY  RULES. 

Index. 

Rule. 

May  Demur  to  Amended  Bill 51 

May  Except  for  Impertinent  or  Scandalous  Matter 15 

May  File  Interrogatories  to  Any  Particular  Plaintiff 38 

Motion  by,  to  Dissolve  Injunction 81 

Motion  of,  for  More  Time  to  Answer 6 

Must  Appear  and  Answer  Bill 4 

Name  of,  Must  Be  Inserted  in  Notice 4 

Need  Not  Appear  Unless  Given  Notice 18 

Non-Resident,  Service  on 9 

Notice  of  Decree  Pro  Confesso  to 30 

Objecting  in  Answer  to  Parties 27 

Shall  Have  Rule  on  Plaintiff  to  File  Replication 46 

Suits  Against  More  Than  One 25 

To  Be  Ruled  by  Plaintiff  for  Demurrer  or  Answer 29 

To  Have  Notice  of  Amendment 48 

To  What  Defendant  May  Make  Answer 37 

When  Arrested  on  Attachment 29 

When  Liable  for  Costs   18 

When,  May  Decline  to  Answer  Interrogatories 39 

When,  May  Demur  31 

When,  May  File  Answer  Instead  of  a  Plea 37 

When  Husband  and  Wife  Are 9 

When  Numerous,  Court  May  Dispense  With  Some 22 

DEFENSES  IN  LAW: 

Defendant  May  Insist  on  All 37 

DEMURRER  (Rules  29-36) : 

Affidavit  as  to  Delay  32 

Case  on,  to  Go  on  Argument  List 33 

Form  of  32 

On,  Case  to  Go  on  Argument  List 60 

Rule  on  Defendant  for,  or  Answer 29 

Ruling  on  Demurrer  34 

When,  Is  Allowed  35 

When,  Is  Overruled 36 

DEPOSITWNS: 

Affidavits  in 57 

As  Evidence   54 

Exceptions  to,  Hearing,  etc 55 

Form  of  Last  Interrogatory 56 

How  to  Be  Used  at  the  Trial 54 

Order  for,  Without  the  State 54 

Order  to  Take 54 

To  Be  in  First  Person 57 

To  Be  in  Paragraphs 57 

Who  May  Enter  Order  for 54 

Who  May  Take 54 

620* 


EQUITY  RULES. 
Index. 

Rule. 
DISCOVERY: 

Attachment  for 29 

Cross  Bills  for,  not  to  Be  Allowed 40 

DIVORCE: 

Master  in 60 

DOCKET  (See  Judgment  Index) : 

Agreement  to  Dismiss  to  Be  Entered  on 28 

Entry  of  Appearance,  Bill,  etc.,  Decrees 13,  84,  85 

Entry  of  Interlocutory  Orders,  etc 75,  77 

ERRORS : 

By  Accident,  to  Be  Corrected  by  Court 90 

Appeal  Lies  Only  to  Matters  Excepted  to 67 

EQUITY  ARGUMENT  LIST  (Also  see  Argument  List) : 

Exceptions  to  Referee 's  Report  to  Go  on 69 

Exceptions  and  Objections  to 64 

In  Injunction  Proceedings 81 

Order  to  Take  Testimony 54 

Taking  from  List ;  Sending  to  Referee 69 

To  Be  Given  in  Open  Court 60 

EQUITY  TRIAL  LIST: 

How  Prepared  -.     60,  73 

EXAMINER: 

Office  of,  to  Take  Testimony  Abolished,  Except  Under  Sta- 
tutes         59 

EVIDENCE: 

Depositions  as 54 

Entry  of  Final  Decree  on 84 

Interlocutory  Applications    58 

Order  to  Take  Going  Testimony 54 

Rules  to  Be  Followed 59 

To  Be  Given  in  Open  Court 58-60 

EXCEPTIONS  (See  Appeals;  Depositions) : 

Filing,  to  Scandalous  or  Impertinent  Matter 15,  45 

Hearing  on  Exceptions  43,  66 

Objections  Waived  by  Failure  to  File 65 

Shall  Be  Printed  43 

To  Answers   42,  45 

To  Decree,  Nisi  and  Final 64,  84 

Time  for  Filing  42 

To  Depositions  55 

To  Evidence  and  Rulings 64 

To  Report  of  Referee 69 

621* 


EQUITY  RULES. 

Index. 

Rule. 
EXECUTIONS: 

As  to  Persons  Not  Parties 89 

Enforcing  Decrees   86-88 

To  Recover  Costs 80 

EXECUTORS  AND  ADMINISTRATORS: 

May  Maintain  Suits 23 

EX-PARTE  PROCEEDINGS: 

For  Want  of  an  Appearance,  Answer  or  Demurrer 29 

On  Rules,  Motions,  etc 77 

FEES: 

Of  Assessor 71 

Of  Referee 70 

FINAL  PROCESS  (Rules  83-90) : 

FORMA  PAUPERIS: 

Printed  Pleadings  Dispensed  with   14 

FORMS: 

For  Final  Decree 83 

Of  Demurrer 32 

Of  Introduction  to  Bill 16 

Of  Last  Interrogatory 56 

Of  Service  on  Defendant 4 

Of  Subpoena  on  Non-Resident  11 

GENERAL  PROVISIONS: 

High  Court  of  Chancery  in  England  to  Be  Followed 94 

In  Equity  Practice   1,  2,  93 

GOING  WITNESSES: 

Depositions  of 54 

GUARDIANS: 

Ad  Litem 7 

May  Be  Appointed  by  the  Court 7 

May  Sue  by  Prochein  Ami 7 

HUSBAND  AND  WIFE: 

Each  to  Be  Served 9 

IMPERTINENCE: 

Exceptions  to  Bill  for 15,  45 

INFANTS: 

May  Sue  by  Prochein  Ami 7 

Service  on,  by  Order  of  Court 19 

Specially  Stated  in  Bills 19 

INFIRM  WITNESSES: 

Depositions  of   54 

622* 


EQUITY  RULES. 
Index. 

Rule. 
INJUNCTIONS  (Rules  81,  82) : 

Granting  Preliminary  81 

Granting  an,  Without  Notice 82 

Hearing  for  an 58 

How,  May  Be  Granted  81 

Motion  to   Dissolve    81,  82 

No  Cautionary  Order  to  Be  Made  in,  Without  Security  ....  82 

When  Bill  for,  Need  Not  Be  Printed 14 

When  Unprinted  Bills  for,  Are  to  Be  Withdrawn 14 

INTERLOCUTORY  MOTIONS,  ETC.  (Rules  74-80) : 

At  Chambers 77 

Entering  as  of  Course  76 

Granting,  and  Rules 74 

Philadelphia,  Vacation  in 79 

Time,  Extension  of  78 

INTERROGATORIES: 

For  Taking  Depositions 54 

Insufficiency  of  Answers  to 39 

May  Be  Tiled  Instead  of  a  Cross  Bill 40 

May  Be  Filed  Separately 38 

Particular,  When  More  Than  One  Plaintiff  or  Defendant  ....  38 

Specific,  Not  to  Be  Included  in  Bill 38 

Time  Allowed  for  Exceptions  to 42 

To  Be  Part  of  Pleadings 38 

To  Plaintiff  by  Defendant 38 

When  Cross-,  May  Be  Filed 54 

When,  May  Be  Filed 38 

When,  Need  Not  Be  Answered 39 

INTRODUCTION: 

Form  of,  in  Bills 16 

JUDGMENT  INDEX: 

When  Entry  Is  to  Be  Made  on,  in  Common  Pleas 85 

JUDGES  (Also  see  Court) : 

May  Grant  Interlocutory  Order,  etc.,  in  Vacation 74 

LETTERS  ROGATORY: 

To  Take  Testimony 59 

MASTER  IN  CHANCERY: 

Abolished  Except  in  Divorce  or  Interlocutory  Orders 60 

MESNE  AND  FINAL  PROCESS: 

Pleadings  for  1,  93 

MOTIONS    (See  Interlocutory  Motions) : 

Prothonotary  to  Enter  as  of  Course 76,  77 

623* 


EQUITY  RULES. 
Index. 

Rule. 
NEWSPAPERS: 

Publication  in 12 

NON-RESIDENTS: 

Service  on  9,  11,  12 

NOTICE: 

Affidavit  as  to  Notice  to  Appear 13 

As  to  Pemurrer  on  Argument  List 33 

Every,  to  Be  in  Writing 75 

Of  Hearing  on  Exceptions  to  Depositions 55 

On  Return  of  a  Commission  55 

To  Adverse  Party  13 

To  Adverse  Party  for  Depositions 54 

To  File  Interrogatories  by  Special 38 

What  Notice  May  Include  5 

ORDER  OF  COURT: 

Cautionary,  in  Injunction  82 

Necessary  to  Amend  an  Answer  After  Replication  Filed  . .  52 

Necessary  to  Amend  Before  Replication  Filed 49 

Special,  for  Parties  Without  the  Jurisdiction 20 

PARTIES  (Rules  18-28) ;  (See  Defendants;  Plaintiffs) : 

Absent  Parties  26 

After  Final  Decree  Executed,  Not  to  Be  Prejudiced  by  Re- 
hearing   "...  91 

Either  Party  May  Ask  for  Jury  Trial 72 

Heir  at  Law  in  Trusts 24 

If  Non  Sui  Juris,  Fact  Must  Be  Stated 19 

Liability  and  Rights  of  Parties  Not  Connected  with  Cause  .  89 

May  Agree  to  Dismiss 28 

May  Appear  at  Option 18 

Objecting  to  Improper  26 

Proceeding  When,  Are  Without  the  Jurisdiction 21 

Suits  Against  Principals  and  Sureties 25 

When,  Are  Very  Numerous,  Some  May  Be  Omitted 22 

Where  Jointly  Liable  25 

Where  Several,  Are  Defendants   25 

Without  the  Jurisdiction 20,  21 

When,  Need  or  Need  Not  Appear 18 

PARTIES  NON  SUI  JURIS: 

Court  May  Appoint  Guardians  for 7 

Petitions  of 7 

Service  on   19 

PERSONAL  REPRESENTATIVE: 

How  Fact  of  Death  Is  to  Be  Noted ' 53 

624* 
37c 


EQUITY  RULES. 


Index. 


Rule. 
PETITION    (See   Motions). 

PHILADELPHIA: 

Vacations  in   79 

PLAINTIFF: 

Defendant  Must  Give  Notice  to   6 

Entitled  to  Attachment  for  Discovery 29 

Entitled  to  Rule  on  Defendant  to  File  Demurrer  or  Answer  29 

In  Suits  Against  Several  Parties 25 

In  Suits  Against  Sureties  or  Principals 25 

Leave  to  Amend  Bill  on  Motion 47 

Liable  for  Costs  When  Bill  Contains  Impertinent  Matter  . .  15 

May  Be  Ruled  to  File  Replication  46 

May  Proceed  by  Attachment  When  No  Appearance  Filed  . .  13 

May  Have  Process  for  Contempt 29 

May  Make  Heir  at  Law  a  Party  in  Trusts  in  a  Will 24 

May  Put  Case  on  Argument  List  on  Demurrer 33 

May  Proceed  Ex  Parte   29 

Must  Give  Notice  to  Require  Appearance 18 

Must  Make  Motion  to  Amend  When  Demurrer  Is  Allowed  .  35 

Not  in  Court  Until  Bill  Filed 4 

Scandalous  Matter  May  Be  Expunged  at  Cost  of 15 

What  Rule  to  Appear  May  Include  5 

When  Very  Numerous,  Court  May  Dispense  With  Some  ....  22 

When  Defendant  Objects  to  Parties  in  Bill 27 

When,  May  Decline  to  Answer  Interrogatories 39 

When  Defendant  May  File  Answer  Instead  of  a  Plea 37 

PLEA: 

Defendant  May  Enter  37 

PLEADINGS    (Also  see  Bills;  'Amendments;  Answers;   Cross- 
Bills;  Decrees;  Demurrers). 

Amendments  to,  How  Printed 14 

General  Rules  as  to 14 

In  Cases  of  Poverty 14 

Number  of  Copies  of 14 

Only  Necessary  Part  of  Writings  to  Be  Printed 15 

When,  Mnst  Be  Printed   14 

POSSESSION  (See  Writ  of  Assistance) : 

PRINTING: 

Provisions  as  to  3,  14,  43 

PRO  CONFESSO: 

Decrees 13,  29,  30.  36 

625* 


EQUITY  RULES. 
Index. 

Rule. 
PROCESS  AND  APPEARANCE  (Rules  3-13) : 

When  Suit  Shall  Be  Deemed  Pending 3 

PROCHEIN  AMI: 

Guardians  May  Sue  by   7 

PROTHONOTARY: 

Duties    of    2 

Entering  Appearances    13 

Entering  Final  Decree 65 

How,  Can  Enforce  Payment  of  Costs 80 

May  Enter  Order  to  Take  Going  Testimony  as  of  Course  . .  54 

May  Open  a  Commission  on  Its  Return 55 

Shall  Endorse  Time  of  Filing  Bill,  etc 3 

To  Enter  Proceedings  on  Docket  13,  75 

Shall  Enter  Rule  for  Answer  or  Demurrer 29 

To  Enter  Notice  on  Docket 13 

To  Endorse  Praecipes 13 

To  Notify  Parties  on  Return  of  a  Commission 55 

To  Tax  All  Costs 80 

When,  Can  Permit  Unprinted  Pleadings  to  Be  Filed 14 

When,  Can  Enter  Final  Decree,  as  of  Course 65 

PUBLICATION: 

Service  by  12 

REAL  ESTATE: 

Trial  of  Cases  Involving 60 

Suits  Involving    23 

RECEIVER: 

Hearing  for  Appointment  of  a 58 

RECORD  (See  Decrees;  Prothonotary ;  Bill,  etc.): 

Requests  and  Answers  to  Be  Part  of 62 

REFEREE: 

Can  Dismiss  Case  Without  Hearing  Defendant 68 

Duties  and  Powers  of 69 

Fees   of    70 

How  Fees  of,  Are  to  Be  Computed 70 

To  Conduct  Hearing 60 

To  Notify  Counsel 69 

REHEARING: 

After  Final  Decree  Has  Been  Executed 91 

Petition  for 91 

When  Petition  for  Shall  Be  Verified  91 

REMEDY  AT  LAW. 

Averment  to  be  Omitted 17 

626* 


EQUITY  RULES. 


Index. 


Rule. 
REPLICATIONS  (Rules  46,  47) : 

Form  of  46 

No  Special,  to  Be  Filed 47 

Pending  Answers  to  Interrogatories 39 

Time  Allowed  for  Filing  46 

When  General,  Is  to  Be  Filed 46 

REVIVOR  (See  Bill  of  Revivor). 

RULES: 

As  to  Philadelphia  County 79 

As  to  Cost  of  Printing 14 

For  Demurrer  or  Answer 29 

High  Court  of  Chancery  in  England  Followed 94 

How  Entered  for  Taking  Testimony 54,  59 

Making  New  Rules  93 

Short  Rule  for  Testimony  on  Injunction  81 

What  Plaintiff  May  Include  in,  to  Appear 5 

SCANDAL: 

May  Be  Expunged  From  the  Record 15,  45 

SECURITY: 

For  Cautionary  Orders   82 

In  Suits  by  Guardians  7 

SEQUESTRATION: 

Writ  of,  When  Party  Cannot  Be  Found 88 

When  Writ  of,  to  Issue 86 

Writ  of,  to  Collect  Costs 80 

SERVICE: 

At  Dwelling  House  8 

By  Publication  12 

Form  of,  on  Defendant   4 

Of  Cross  Bills   40 

Of  Exceptions  to  Pleadings  on  Counsel 43 

Of  Interrogations  on  Counsel   38 

On  Commonwealth  as  Party  to  Suit 10 

On  Corporation  as  Defendant   10 

On  Non-Resident  by  Order  of  Court  11 

On  Non-Resident  Defendant   9,  12 

On  Husband  and  Wife 9 

Time  for  Serving  Final  Decree  84 

SOLICITOR: 

Entitled  to  Ten  Copies  of  Pleadings 14 

Filing  Praecipe  for  Appearance   13 

Must  Give  Name  and  Place  of  Business 4 

Of  Successful  Party  to  Draw  Final  Decree 84 

627* 


EQUITY  RULES. 
Index. 

Rule. 

Time  Limit  for  Serving  Final  Decree 84 

To  Serve  Copy  of  Final  Decree 84 

SUBPOENA: 

Form  of,  on  Non-Resident 11 

SUPERIOR  COURT: 

What,  Will  Hear  on  Appeal 67 

SUPREME  COURT: 

What,  Will  Hear  on  Appeal 67 

SUPPLEMENTAL  BILL: 

How  Made 53 

SURETIES: 

Suits  Against   25 

TIME: 

To  Appear  and  Answer  4,  5 

Extension  of  6 

TESTIMONY  (Also  see  Evidence) : 

Rules  to  Be  Followed  in  Taking  59 

TRIAL  (Rules  58-68) : 

Use  of  Depositions  at   54 

To  Be  Before  Judge  or  Referee 60 

TRIAL  BY  JURY: 

Court  to  Frame  Issue  for 72 

Either  Party  May  Move  for  Rule  for 72 

TRIAL  JUDGE  (Also  see  Court) : 

Can  Dismiss  Case  Without  Hearing  Defendant 68 

Conduct  of  Case  at  Trial 60 

May  Open  Commission 55 

To  Act  on  Requests  for  Findings  of  Fact  or  Law 62 

To  Sit  as  Chancellor  60 

TRIAL  LIST: 

How  Made  Up  73 

How  Cases  on,  Are  to  Be  Heard  60 

TRUSTS: 

Suits  Involving,  in  Real  Estate 23 

Suits  Involving,  in  Will 24 

TRUSTEES : 

Real  Estate  Vested  in 23 

May  Represent  Persons  Beneficially  Interested  in  Real  Es- 
tate        23 

628* 


EQUITY  RULES. 

Index. 

Rule. 
VERDICT: 

How  Returned  in  Jury  Trial 72 

Not  Binding  on  Chancellor 72 

WILLS: 

Establishing,  Against  Heirs   24 

Trust  in,  Parties  to  a  Suit 23,  24 

WITNESSES: 

On  Appointment  of  a  Receiver 58 

In  Injunction  Proceedings 81 

On  Application  for  an  Injunction 58 

Testimony  of  Ancient,  Infirm  or  Going,  De  Bene  Esse 54 

When  Produced  in  Open  Court 58 

WRIT  OF  SEQUESTRATION  (See  Sequestration) : 

WRITINGS: 

How  to  Be  Printed  in  Bills  15 

WRIT  OF  ASSISTANCE: 

Court  to  Grant  87 

When,  May  Issue 86 


TABLE  OF  CONSTITUTIONAL  PROVISIONS. 
TABLE  OF  STATUTES. 


TABLE  OF   CONSTITUTIONAL 
PROVISIONS. 


Art.  3,  §7 §1  (C). 

§13 §6,n.  (2). 

Art.  4,  §8 §4 

§17 §3  (C). 

Art.  5,  §1 §1. 

§2 §2  (A);  §3  (A). 

§3 §34;  §35  (A) ;  §36  (A) ;  §37;  §38  (A) ;  §39;  §42  (A). 

§16 §2  (B) . 

§18 §6  (A). 

§19 §5. 

§21 §35  (B). 

§24 §46  (A) ;  §46  (B) ;  §103. 

§25 §4. 

§26 §1  (B) ;  §48  (E). 

§27 §98  (A) . 

Art.  8 §2  (A) ;  §12  (A). 

Art.  16,  §8 §48  (A). 


TABLE   OF   STATUTES. 

1722. 

May  22, 1  Sm.  L.  131. 

§9 §43;  §46,  n.  (7)  (a). 

§13  ..§11  (A),  (C);  §11,  n.  (3)  (e) ;  §42  (B),  (D) ; 

§42,  n.  (1)   (e). 
1750. 

Jan.  27,  Sm.  L.  203. 

§2    §65 

1783. 

Dec.  9,  Sm.  L.  86. 

§3    §92. 

1799. 

Feb.  9,  3  Sm.  L.  89. 

§182,  n.  (2)  (y). 

Mar.  20,  3  Sm.  L.  358. 

§14 §238  (A). 

1804. 

Apr.  2,  P.  L.  375. 

§48,  n.  (1)  (m). 

583 


TABLE  OF  STATUTES. 


1806. 

Feb.  24,  4  Sm.  L.  270. 

§25 §147 

Mar.  21,  4  Sm.  L.  32. 

§6 §228,  n.  (24)  (g). 

1807. 

Dec.  4,  4  Sm.  L.  479. 

§48,  n.  (1)  (q). 

1810. 

Mar.  20,  5  Sm.  L.  131. 

§48,  n.  (1)  (b). 

1812. 

Mar.  31,  5  Sm.  L.  393. 

§48,  n.  (1)  (i). 

1815 

'  Mar.  13,  P.  L.  150. 

§13  §48,  n.  (1)  (n). 

1817. 

Feb.  26,  6  Sm.  L.  405. 

§48,n.(l)  (o). 

1821. 

Feb.  22,  7  Sm.  L.  370. 

§4 §8,n.  (3). 

1827. 

Apr.  16,  P.  L.  471. 

§48,  n.  (1)  (r2). 

1830. 

Apr.  3,  P.  L.  187. 

§161,  n.  (4)  (a). 

1832 

'  March  29,  P.  L.  190. 

§44,  n.  (2) 

§39  §45. 

May  5,  P.  L.  501. 

§43,  n.  (3)  (b);§44,  n.  (6)  (v). 

1834. 

Feb.  24,  P.  L.  77. 

§26 §235. 

Apr.  14,  P.  L.  333. 

§48,  n.  (1)  (t2). 

§2  §2  (C). 

§4 §7  (A). 

§7 §7,n.  (2). 

§8 §11  (G). 

§9 §8  (A) 

§15 §7(B). 

§37 §228,  n.  (24)  (wS). 

§56  §48,  n.  (1)  (c). 

§120  §228,  n.  (13)  (i). 

§164  §8,  n.  (4) 

584 


TABLE  OF  STATUTES. 


1835. 

Mar.  28,  P.  L.  88. 

§5 §88  (A). 

Apr.  14,  P.  L.  276. 

§4 §229  (A). 

1836. 

June  13,  P.  L.  539. 

§48,  n.  (1)  (12). 

June  13,  P.  L.  541. 

§48,  n.  (1)  (k). 

June  13,  P.  L.  568. 

§75  §68. 

June  13,  P.  L.  592. 

§12 §48,  n.  (1)  (f2). 

June  13,  P.  L.  606. 

§43 §48,  n.  (1)  (r);§62. 

June  14,  P.  L.  621. 

§15  §89. 

June  14,  P.  L.  628. 

§15  §48,  n.  (1)  (a2). 

§36  §99. 

June  16,  P.  L.  317. 

§3  §51  TA). 

June  16,  P.  L.  683. 

§2 §229  (HJ. 

June  16,  P.  L.  717 

§182,  n.  (2)  (i). 

June  16,  P.  L.  729 

§43,  n.  (6)  (e2). 

June  16,  P.  L.  755. 

§87  §66  (D). 

§88  §66  (C). 

§89  §66  (B). 

June  16,  P.  L.  785. 

§1  §42  (B),  (D);  §102. 

§3  §11  (B) 

§4 §11  (B). 

§7 §42  (C). 

§20 §11  (C);  §42  (D). 

§22 §11  (E). 

1839. 

July  2,  P.  L.  554. 

§48,  n.  (1)  (x). 

July  2,  P.  L.  566. 

§48,  n.  (1)  (x). 

1840. 

June  13,  P.  L.  689. 

§9 §49  (B);  §51  (B). 

585 


TABLE  OF  STATUTES. 


1842. 

Apr.  15,  P.  L.  230. 

§15 §84  (A). 

July  12,  P.  L.  339. 

§2 §182,  n.  (4)   (i). 

July  30,  P.  L.  454. 

§§25,26 §48,  n.  (1)   (p2). 

1845. 

Mar.  17,  P.  L.  158. 

§1  §44,  n.   (2). 

Apr.  11,  P.  L.  374. 

§2  §9,  n.   (6). 

1846. 

Apr.  20,  P.  L.  411. 

§43,  n.  (5)    (o). 

§2  §66  (C). 

1847. 

March  15,  P.  L.  361. 

§1  §168,  n.  (3)   (b). 

1848. 

April  10,  P.  L.  450. 

§8  §45,  n.  (2)   (b);  §66,  n.  (1)   (a). 

1849. 

Apr.  10,  P.  L.  619. 

§7  §66,  n.  (1)    (a). 

1850. 

Mar.  22,  P.  L.  230. 

§2 §47 

Apr.  25,  P.  L.  573. 

§25  §49  (C). 

1851 

*  Apr.  15,  P.  L.  648. 

§3  §2,  n.  (1). 

§18  §43,  n.   (10)    (c). 

§19  §43,  n.  (10)    (d). 

1852. 

Apr.  8,  P.  L.  291. 

§1    §36    (B). 

1853. 

Apr.  18,  P.  L.  503. 

§8 §91  (A). 

Apr.  26,  P.  L.  309 

§232,  n.  (1)  (f). 

1855. 

Apr.  26,  P.  L.  305. 

§1  §7  (C). 

§2 §7  (D). 

§6  §43,  n.  (10)    (d). 

Apr.  26,  P.  L.  321. 

§48,  n.   (1)    (b2). 

586 


TABLE  OF  STATUTES. 


May  26,  P.  L.  264. 

§12  §8,  n.  (4). 

1856. 

Apr.  9,  P.  L.  288. 

§3    §90. 

Apr.  15,  P.  L.  337. 

§1    §147. 

Apr.  22,  P.  L.  525. 

§1 §56,  n.  (3)  (b). 

Nov.  6,  P.  L.  795. 

§7 §46,  n.  (7)  (b). 

1857 

'  Feb.  14,  P.  L.  39. 

§1 §44  (A). 

1858 

'  March  10,  P.  L.  91. 

§7 §66,  n.  (1)  (a). 

June  21,  P.  L.  419. 

§146,  n.  (1)  (d). 

1860. 

Mar.  31,  P.  L.  427. 

§33 §46  (A). 

§57 §46  (B). 

§60  §46,  n.  (6). 

§57    §151. 

§58 §149. 

1861. 

Apr.  18,  P.  L.  409. 

§48,  n.  (1)    (z). 

1863. 

Apr.  14,  P.  L.  374. 

§1    §87. 

Apr.  22,  P.  L.  554. 

§1  §88  (B). 

1864. 

Mar.  25,  P.  L.  537. 

§14 §48,  n.  (1)  (c). 

Mar.  31,  P.  L.  162. 

§48,  n.  (1)  '(h2). 

1866. 

Feb.  14,  P.  L.  28. 

§1 §44  (B);  §71  (A). 

1867. 

Apr.  2,  P.  L.  711. 

§2    §55. 

Apr.  10,  P.  L.  1123. 

§2 §62  (E). 

Apr.  13,  P.  L.  78. 

§43,  n.  (3)  (p2) 

§48,  n.  (1)  (1). 

587 


TABLE  OF  STATUTES. 


1868. 

Mar.  3,  P.  L.  46. 

§1 §9,n.  (4). 

Mar.  16,  P.  L.  46. 

§228,  n.  (18)  (p);n.  (29)  (r). 

§1  §85. 

1869. 

Feb.  12,  P.  L.  3. 

§1 §67  (A). 

March  17,  P.  L.  8. 

.  .§43,  n.  (3)  (q) ;  §161,  n.  (3)  (m) ;  §182,  n.  (3)  (h). 
1870. 

Feb.  15,  P.  L.  15. 

§1 §46  (B). 

§2  §46  C;  §230. 

Feb.  26,  P.  L.  256. 

§1 §84  (B). 

Apr.  1,  P.  L.  45. 

§1  §59  (B) 

Apr.  6,  P.  L.  948. 

§43,  n.  (9)  (p). 

1871. 

May  5,  P.  L.  251. 

§2 §7  (B). 

May  11,  P.  L.  266. 

§1 §9,n.  (6). 

June  19,  P.  L.  1360. 

§104,  n.  (1)  (c). 

June  22,  P.  L.  1363. 

1872.          §48,  n.  (1)  (,2). 

Apr.  3,  P.  L.  35. 

§59  (C). 

1874. 

Apr.  18,  P.  L.  64. 

§1 §50  (A). 

§2 §50  (B). 

Apr.  22,  P.  L.  109. 

§228,  n.  (18) . 

§1 §98  (A). 

§2 §98  (B). 

§3 §98  (A). 

Apr.  29,  P.  L.  104. 

§41 §59  (A) ;  100  (A). 

Apr.  30,  P.  L.  118. 

§2,n.  (3). 

May  8,  P.  L.  122. 

§76,  n.  (2)  (a). 

May  14,  P.  L.  166. 

§228,  n.  (18)  (u). 

588 


TABLE  OF  STATUTES. 


May  19,  P.  L.  208. 

§2,  n.  (6). 

May  19,  P.  L.  219. 

P  §46  (D);  §151. 

May  19,  P.  L.  406. 

§48,  n.(l)  (v). 

May  19,  P.  L.  211. 

§48,  n.  (1)  (y). 

May  25,  P.  L.  227. 

§242,  n.  (1). 

June  13,  P.  L.  283. 

§97,  n.  (2). 

§2 §48  (A). 

1875. 

Mar.  11,  P.  L.  6. 

§1 §82. 

Apr.  12,  P.  L.  42 

§48,  n.  (1)    (02). 

1876. 

Apr.  17,  P.  L.  38. 

§48,  n.  (1)   (e),  (k2). 

May  1,  P.  L.  66. 

§52 §73. 

May  5,  P.  L.  115. 

§1 §7(C). 

May  8,  P.  L.  131. 

§228,  n.  (24)  (v3). 

June  14,  P.  L.  628. 

§7 §48,  n.  (1)  (12). 

1877. 

Mar.  24,  P.  L.  38. 

§1 §148. 

§2    §148. 

Apr.  4,  P.  L.  53. 

§74,  n.   (1)    (s). 

§1  §74,  n.  (1)   (d). 

1878. 

May  24,  P.  L.  129. 

§1 §48  (A);  §56  (G). 

June  12,  P.  L.  204. 

§48,  n.   (1)    (w). 

June  12,  P.  L.  201. 

§1 §9(A);§9,n.  (1). 

§5 §10  (A). 

§6    §9,  n.    (2). 

§7 §10  (B). 

§8 §10  (C). 

§9 §10  (D). 

§11 §10  (E). 

589 


TABLE  OF  STATUTES. 


June  12,  P.  L.  204. 

§1 §63  (B);§64(C). 

§4 §63  (D). 

June  12,  P.  L.  208. 

§1 §54  (A). 

1879. 

May  19,  P.  L.  66 §53;  §239,  n.  (2)  (v). 

June  11,  P.  L.  150. 

§48,  n.  (1)  (d). 

June  12,  P.  L.  177. 

§1  §44  (B);  §71  (B). 

1881. 

June  10,  P.  L.  112. 

§3  §69. 

1883. 

May  8,  P.  L.  30. 

§39  §76  (B). 

June  1,  P.  L.  58 

§1 §60  (A). 

June  2,  P.  L.  61. 

§3 §86  (A). 

June  5,  P.  L.  84. 

§3  §95. 

June  13,  P.  L.  93. 

§3  §86  (B). 

June  20,  P.  L.  136. 

§1  §129. 

1885 

May  29,  P.  L.  34. 

§12 §81  (B). 

June  24,  P.  L.  152. 

§1 §48,n.(l)  (t). 

1887. 

May  6,  P.  L.  79. 

§12  §57. 

May  6,  P.  L.  87. 

§1 §80  (H). 

May  12,  P.  L.  96. 

§48,  n.  (1)  (g);  §288,  n.  (24)  (x3). 

May  19,  P.  L.  127. 

§1  §9  (B),  (C). 

May  24,  P.  L.  199. 

§147,  n.  (4)  (c). 

June  2,  P.  L.  308. 

§§6,  8  §100  (B),  (C). 

1888. 

Apr.  10,  P.  L.  450. 

§48 §67  (B). 

590 


TABLE  OF  STATUTES. 


1889. 

Mar.  8,  P.  L.  10. 

§48,  n.    (1)    (u). 

Mar.  28,  P.  L.  22. 

§1 §9  (D). 

§2    §9,   n.    (2). 

Apr.  4,  P.  L.  25. 

§48,  n.  (1)  (i). 

Apr.  25,  P.  L.  50. 

§1 §58  (C);§80  (I). 

May  2,  P.  L.  66. 

§9 §64  (A). 

§22  §64  1C). 

May  2,  P.  L.  77. 

§9    §64    (B). 

May  4,  P.  L.  81. 

§1    §93. 

May  9,  P.  L.  158. 

§42,  n.  (3) 

§1 §32,  n.  (2)  (z) ;  n.  (3) ;  §48  (C) ;  §130;  §182. 

§2    §131. 

§3    §127. 

May  9,  P.  L.  174. 

§1 §56    (A). 

May  16,  P.  L.  228. 

§52  §80  (J). 

May  23,  P.  L.  316. 

§6,  Art.  14 §80  (K). 

1891. 

Apr.  15,  P.  L.  17. 

§1 §56  (H). 

May  15,  P.  L.  71. 

§1  §80,  n.  (3)    (b). 

1891. 

May  16,  P.  L.  70. 

§7 §78,  n.  (3). 

May  16,  P.  L.  71. 

§43,  n.  (3)    (c2). 

§44,  n.  (6)  (v). 

May  16,  P.  L.  76. 

§48,  n.  (1)  (v2);§56,n.  (6)  (a). 

§6  §56,  n.  (5)    (a). 

May  20,  P.  L.  90. 

§1 §56  (D). 

May  20,  P.  L.  101. 

§1 §61,  n.  (2)  (d) ;  §74;  §78,  n.  (2). 

§2    §228    (A). 

June  11,  P.  L.  295. 

§1  §48,  n.  (1)   (p);§61. 

591 


TABLE  OF  STATUTES. 


1893. 

May  26,  P.  L.  154. 

§4 §80  (B),  (C). 

June  6,  P.  L.  342. 

§3 §58  (A). 

June  8,  P.  L.  345. 

§29  §77. 

§30 §77 

§31  §77. 

§32 §38  (B) ;  §77. 

§33 §38  (C) ;  §77. 

June  10,  P.  L.  415. 

§48,  n.  (1)  (v) ;  §228,  n.  (27)  (i). 

§2 §59(C);§91(B). 

1895. 

May  21,  P.  L.  93. 

§43,  n.  (2)  (v). 

June  8,  P.  L.  188. 

§4 §80  D. 

June  24,  P.  L.  212. 

§1 §12  (A) ;  §12  (C) ;  §14 ;  §40. 

§2 §12  (D) ;  §13  (A) ;  §13  (B). 

§3 §15,  n.  (n)  (3);  §16;  §17  (B) ;  §228  (A). 

§4 §17  (A). 

§5 §16;  §19. 

§6  §18. 

§7  ...  .§46  (E) ;  §102;  §103:  §108;  §109;  §112;  §Jgl; 

' —  ~-->  —  ^122 

§8 §228  (B);  §234;  §243. 

§9 §120  (A),  (B);  §123;  §228  (A);  §243. 

§10 §124;  §125. 

§12 §33  (A). 

§14  §116. 

June  24,  P.  L.  243. 

§1 §49  (A). 

June  25,  P.  L.  301. 

§9  §101. 

June  26,  P.  L.  382. 

§2  §59,  n.  (4). 

1897. 

May  11,  P.  L.  53. 

§1 §81  (A). 

May  19,  P.  L.  67. 

§1  t §132. 

§2 §140;  §143. 

§3 §134  (A) ;  §139. 

§4  .§46,  n.  (9)  (c);  §80,  n.  (3)  (a);  §126;  §128; 

§167. 

592 


TABLE  OF  STATUTES. 


§5 §134  (B) ;  §163. 

§7  §164;  §170. 

§9  §173. 

§10  §174. 

§11  §175. 

§12  §179. 

§13  §176. 

§14  §177. 

§15  §168. 

§16 §171;  §178. 

§18 §137;  §142;  §146;  §241. 

§19 §141;  §165. 

§20  §244. 

§21 §239;  §242. 

§22 §44,  n.  (2);  §168,  n.  (3). 

May  26,  P.  L.  95. 

§43,  n.  (5)  (f). 

§10 §66  (A). 

June  4,  P.  L.  116. 

§1 §80,  n.  (3)  (b). 

June  14,  P.  L.  149. 

§5  §70. 

June  15,  P.  L.  154. 

§1  §75. 

June  15,  P.  L.  162. 

§1  §76  (A). 

July  9,  P.  L.  223. 

§48,  n.  (1)  (v). 

1899. 

Apr.  18,  P.  L.  60. 

§1  §80,  n.  (31)  (c). 

Apr.  28,  P.  L.  74. 

§6 §100  (D). 

§7 §56  (K);§80  (F). 

§8  §100  (E). 

Apr.  28,  P.  L.  100. 

§1 §56,  n.  (5)  (a). 

May  2,  P.  L.  184. 

§48,  n.  (1)  (J2);  §182,  n.  (4)  (w2). 

May  5,  P.  L.  248. 

§1  §104;  §110. 

§2 §105;  §111. 

§3  §41. 

§4 §117  (A) ;  §117  (D). 

§5  §106. 

§6  §107. 

§7  §113;  §114. 

§9  §15,  n.  (3). 

§10  §119. 

§11  §115. 

593 

38 


TABLE  OF  STATUTES. 


1901. 

May  11,  P.  L.  169. 

§4  .............................  §56(C);§58(B). 


§54    (B). 


June  1,  P.  1356. 


June  4,  P.  L.  364. 

§40  ...................  §78  (A)  ;  §56  (L)  ;  §80  (A). 

§42  .............................  §56,  n.  (5)   (b). 

June  4,  P.  L.  404. 

§39    ........................................  §72. 

June  4,  P.  L.  431. 

§59    ........................................  §77. 

June  7,  P.  L.  510. 

§5  .....................................  §97  (A). 

June  10,  P.  L.  555. 

§5  .............................  §56  (B);§56  (J). 

June  17,  P.  L.  668. 

§2   ....................................  §56    (H). 

June  26,  P.  L.  601. 

§1    .........................................  §94- 

July  17,  P.  L.  668. 

§2  ............................  §97  (B);  §80  (A). 

1903. 

Mar.  26,  P.  L.  63. 

§5    ....................................  §80    (E). 

Apr.  2,  P.  L.  124. 

§2  ......................................  §56(1). 

§6  .....................................  §80  (A). 

Apr.  14,  P.  L.  175. 

§1  .........................  §6,n.  (l);n.  (2),  (3). 

§2  .....................................  §15  (A). 


1905. 

Mar.  14,  P.  L.  39. 

§1  ..................................  §15,  n.  (3). 

Apr.  17,  P.  L.  185. 

§1  ...............................  §15(B),n.  (3). 

§4    ....................................  §80    (G). 

Apr.  18,  P.  L.  198. 

§3  ....................................  §118  (A). 

§4  ..........................  §118  (B),  (C),  (D). 

Apr.  22,  P.  L.  286. 

§1  .....................................  §88  (C). 

Apr.  24,  P.  L.  306. 

§1  ......................................  §8  (B). 

Mav  4.  P.  L.  384. 

§1  ....................................  §8,n.(2). 

594 


TABLE  OF  STATUTES. 


1906. 

Mar.  5,  P.  L.  78. 

§10 §48,  n.  (1)  (w);§63  (A). 

1907. 

Mar.  14,  P.  L.  15. 

§1  §80,  n.  (3)   (d). 

Mar.  22,  P.  L.  3L 

§240,  n.  (1)   (b). 

Apr.  13,  P.  L.  83. 

§240,  n.  (IJ  (a). 

Apr.  15,  P.  L.  83. 

§7 §56  L;  §79  (B). 

May  1,  P.  L.  135. 

§3   §152;  §153. 

§4   §155. 

§5    §155. 

§7 §157;  §158;  §159  (C). 

§8    §159. 

§9    §160. 

May  1,  P.  L.  142. 

§1 §134  (C). 

May  28,  P.  L.  283. 

§1    §172. 

June  1,  P.  L.  378. 

§6    §80    (L). 

June  7,  P.  L.  440. 

§§1-3 §44  (C);§184(A). 

June  7,  P.  L.  440. 

§§2,3 §228  (C);§239,n.  (3)  (f). 

1909. 

Mar.  24,  P.  L.  67. 

§6    §96    (A). 

Mar.  24,  P.  L.  69. 

§6  §96  (A). 

Mar.  24,  P.  L.  73. 

§6 §96  (B). 

Apr.l;P.  L.  79. 

§5 §56  (E). 

Apr.  22,  P.  L.  103. 

§1  §169;  §238  (B). 

Apr.  27,  P.  L.  264, 

§1  §240. 

May  3,  P.  L.  388. 

§2  §52. 

May  3,  P.  L.  401. 

§10 §56  (F) ;  §97  (C). 

May  6,  P.  L.  433. 

§2    §18. 

§6  §9,n.  (2). 

595 


TABLE  OF  STATUTES. 


May  8,  P.  L.  475. 

§1 §33  (A). 

§2  §33,  n.  (3). 

May  11,  P.  L.  506. 

§9 §60  (B). 

1911. 

Apr.  20,  P.  L.  70. 

§1    §88    (D). 

Apr.  21,  P.  L.  81. 

§8,  n.T2). 

May  5,  P.  L.  161. 

§1  ....§153;  §159  (B). 

May  11,  P.  L.  279. 

§§1_2 §162. 

§3    §154. 

§4 §155;  page  162,  Ap. 

§5    §156. 

§6 §162;  page  519,  Ap. 

June  3,  P.  L.  627. 

§1  §239  (B). 

June  9,  P.  L.  865. 

§4 §54    (B). 

June  13,  P.  L.  889. 

§1  §104  (B) ;  §105  (B). 

June  19,  P.  L.  1071. 

§1 §51  (C). 

June  23,  P.  L.  1121. 

§1 §6,n.  (4). 


596 


TABLE  OF  CASES.  Abi-All 


TABLE   OF   CASES. 


Abington  Dairy  Co.  v.  Reynolds,  24  Pa.  Super.  632— §228,  n.  (20)   (a), 

(j). 

Abraham  v.  Mitchell,  112  Pa.  230 §228,  n.  (23)    (h). 

Academy  of  Fine  Arts  v.  Power,  14  Pa.  442— §132,  n.  (1)  (b). 

Acklin  v.  Oil  Co.,  201  Pa.  257— §187,  n.  (1)  (b) ;  §228,  n.  (26)  (b). 

Act  of  May  9,  1889,  Construction  of,  25  W.  N.  C.  361— §42,  n.  (3). 

Adams  v.  Adams,  1  W.  N.  C.  279— §82,  n.  (1)   (b). 

Adams  Twp.  Road,  130  Pa.  190— §126,  n.  (4)   (o). 

Adams  v.  Berge,  30  Pa.  Super.  422— §110,  n.  (2)  (a). 

Adams  v.  Mortland,  13  W.  N.  C.  221— §163,  n.  (3)  (c). 

Adams  v.  Trac.  Co.,  41  Pa.  Super.  403— §228,  n.  (20)   (i). 

Adamson's  Ap.,  110  Pa.  459— §43,  n.  (7)   (d);  §228,  n.  (11)   (a). 

Adrian  v.  Fink,  226  Pa.  448— §44,  n.  (8). 

Aetna  Ins.  Co.  v.  Confer.,  158  Pa.  598— §50,  n.  (4)  (a). 

African  M.  E.  Union  Church,  28  Pa.  Super.  193— §182,  n.   (4)    (s2) ; 

§228,  n.  (24)   (w2). 

Agnew's  Ap.,  3  Walk.  320— §43,  n.  (9)   (k). 
Ahl's  Est.,  15  Pa.  Super.  224— §43,  n.  (6)  (x). 
Ahl  v.  Goodhart,  161  Pa.  455— §190,  n.  (14)   (c),  (15)   (a). 
Aiken  v.  Stewart,  63  Pa.  30— §161,  n.  (5)  (p) ;  §187,  n.  (1)  (a) ;  §190, 

n.  (13)  (a);  §228,  n.  (17)  (d),  (24)  (a2). 
Ake's  Appeal,  21  Pa.  320— §228,  n.  (18)  (k). 
Albright  v.  Albright,  228  Pa.  562— §228,  n.  (3)   (k). 
Albright  v.  Coal  Co.,  203  Pa.  65— §82,  n.  (2)   (a). 
Alcorn  v.  Phila.,  112  Pa.  494— §228,  n.  (23)   (c). 
Alden  v.  Grove,  18  Pa.  377— §228,  n.  (27)   (f). 
Alexander  v.  Bank,  1  Pa.  395— §190,  n.  (12)   (c),  (13)   (e). 
Alexander  v.  Com.,  105  Pa.  1— §151,  n.  (1)  (d),  (2)   (c) ;  §228,  n.  (20) 

(a),  (24)   (P2). 

Alexander  v.  Buckwalter,  17  Pa.  Super.  128— §228,  n.  (19)    (q). 
Alexander  v.  Goldstein,  13  Pa.  Super.  578— §110,  n.  (2)   (a). 
Alfonso's  Case,  11  Pa.  Super.  565— §146,  n.   (2)    (h) ;  §228,  n.   (24) 

(t3). 

Allbright  v.  McGinnis,  4  Yeates  517— §244,  n.  (1)   (d). 
Allegheny  City  Road,  1  Pitts.  67— §228,  n.  (24)  (d3). 
Allegheny  City  v.  Nelson,  25  Pa.  332— §190,  n.  (2)   (a)- 
Allegheny  City  v.  McCaffrey,  131  Pa.  137— §146,  n.  (1)   (b). 
Allegheny  Bank's  Ap.,  48  Pa.  328— §43,  n.  (6)   (i). 
Allegheny  L.  &  T.  Co.  v.  Grendling,  33  Pa.  Super.  621— §110,  n.  (2) 

(a). 

Allegheny  v  Nelson,  25  Pa.  332— §228,  n.  (17)   (d). 
Allegheny  R.  R.  v.  Steele,  11  W.  N.  C.  113— §228,  n.  (20)  (e) ;  n.  (22) 

(e). 

597 


All-Ast  TABLE  OF  CASES. 


Allen's  Appeal,  99  Pa.  196— §228,  n.  (24)   (e2). 

Allen's  Est.,  20  Pa.  Super.  32— §45,  n.  (3)   (g). 

Allen  v.  Kellam,  94  Pa.  253— §163,  n.  (1)  (c),  n.  (3)  (i). 

Allen  v.  Maclellan,  12  Pa.  328—  §61,  n.  (2)   (e). 

Allen  v.  Oxnard,  152  Pa.  621— §186,  n.  (2). 

Allen  v.  Eostain,  11  S.  &  R.  362— §183,  n.  (4)   (h) ;  §228,  n.  (25)   (v). 

Allentown  Road,  5  Whar.  442— §228,  n.  (12)  (g). 

Allentown  v.  Ackerman,  37  Pa.  Super.  363— §187,  n.  (2)  (a) ;  §190,  n. 

(13)   (a). 

Altoona  v.  Irwin,  3  Penny.  115— §43,  n.  (9)  (j). 
Altoona  v.  Lotz,  114  Pa.  238— §228,  n.  (22)   (f2). 
American  Car  Co.  v.  R.  R.,  218  Pa.  519— §§155,  n.  (1)  (b) ;  187,  n.  (1) 

(g);189,  n.  (2)   (a) ;  198,  n.  (2)   (a). 

American  Life  Ins.  Co.  v.  Isett,  74  Pa.  176— §228,  n.  (19)   (a). 
American   Soda  Water   Co.   v.   Tagg,   46   Pa.    Super.   123— §§43,   n. 

(3)  (g3);74,  n.  (1)  (b),  (c). 

American  Steamship  Co.  v.  Landreth,  108  Pa.  264— §228,  n.  (6)  (1). 
American  Steel  Co.  v.  Hotel  Co.,  226  Pa.  461— §228,  n  (24)  (b). 
American  Sunday  Sch.  Union  v.  Phila.,  161  Pa.  307— §146,  n.  (2)  (q). 
American  Tel.  Co.  v.  Lennig,  139  Pa.  443— §228,  n.  (23)   (h). 
Anderson  v.  Long,  10  S.  &  R.  55— §§183,  n.  (2)   (r),  n.  (5)   (e) ;  228, 

n.  (15)   (i). 

Anderson  v.  McMichael,  6  Pa.  Super.  114— §43,  n.  (3)  (1). 
Anderson  v.  Oliver,  138  Pa.  156—  §82,  n.  (2)   (a). 
Andrews  v.  Andrews,  5  S.  &  R.  374— §§48,  n.  (1)  (n) ;  61,  n.  (2)   (b) ; 

182,  n.  (3)   (d);  228,  n.  (18)  (b). 
Andrews  v  Coal  Co.,  202  Pa.  639— §228,  n.  (18)  (j2). 
Angier  v.  Eaton,  98  Pa.  594— §228,  n.  (23)  (c). 
Angier  v.  Eaton,  11  W.  N.  C.  146— §228,  n.  (23)  (e),  (f). 
Ankermiller  v.  O'Bryne,  2  Mona.  766 — §242,  n.  (1)  (c). 
Anspach  v.  Christman,  44  Pa.  Super.  99— §187,  n.  (1)   (g). 
Anville  Twp.  Overseers  v.  Smith,  2  S.  &  R.  363— §§11,  n.  (3)   (a) ;  42, 

n.  (1)   (a);  48,  n.  (2)   (c). 

Applegate  v.  Cohn,  1  Pa.  Super.  344— §146,  n.  (2)   (g). 
Arbuckle  v.  Thompson,  37  Pa.  170— §228,  n.  (22)   (a). 
Ardesco  Oil  Co.  v.  Gilson,  63  Pa.  146— §228,  n.  (24)   (e2). 
Armstrong's  Appeal,  68  Pa.  409— §§183,  n.  (2)  (a) ;  185,  n.  (2)  (a). 
Armstrong's  Est.,  6  Watts  236— §222,  n.  (1)  (g). 
Armstrong  v.  Espy,  220  Pa.  48— §44,  n.  (6)   (f ). 
Armstrong  v.  Hussey,  12  S.  &  R.  315— §228,  n.  (20)   (e). 
Arnold  v.  Blabon,  147  Pa.  372— §187,  n.  (1)   (b). 
Arnold  v.  Car  Co.,  212  Pa.  303— §198,  n.  (3)  (b). 
Arnold  v.  Ins.  Co.,  22  Pa.  Super.  575— §228,  n.  (23)   (k). 
Arnold  v.  Plow  Co.,  212  Pa.  303— §§44,  n.  (6)  (g) ;  183,  n.  (2)  (f). 
Arnold  v.  Stoner,  18  Pa.  Super.  537— §50,  n.  (4)   (a). 
Arthurs  v.  Swathers,  38  Pa.  40— §§183,  n.  (5)   (a) ;  186,  n.  (1)  (a). 
Ashton  v.  Sproule,  35  Pa.  492— §§161,  n.  (4)  (g) ;  228,  n.  (11)  (a). 
Aspell  v.  Smith,  134  Pa.  59—  §§186,  n.  (1)  (a) ;  228,  n.  (25)  (g). 
Assistance  B.  &  L.  Asso.  v.  Wampole,  6  Pa.  Super.  238— §50,  n.  (4)  (a). 
Astwood  v.  Wanamaker,  209  Pa.  103— §117,  n.  (2)   (s). 

598 


TABLE  OF  CASES.  Atc-Bar 


Atchison  v.  McCulloch,  5  Watts  13— §228,  n.  (11)  (h). 

Athens  Boro.  v.  Carmer,  169  Pa.  426— §228,  n.  (20)  (h). 

Atkins  v.  Grist,  44  Pa.  Super.  310— §228,  n.  (24)  (z3). 

Atkinson  v.  Crossland,  4  Watts  450— §239,  n.  (1)   (f). 

Auburn  Bolt  Works  v.  Shultz,  143  Pa.  256— §228,  n.  (22)  (o),  (v2).     - 

Augerstein  v.  Jones,  139  Pa.  183— §§187,  n.  (1)   (b) ;  n.  (4)   (a). 

Augustine  v.  Wolf,  215  Pa.  558— §§74,  n.  (1)   (s) ;  228,  n.  (24)   (z3). 

Axtell's  Ap.,  43  L.  I.  476— §43,  n.  (6)  (y). 

Axtell  v.  Caldwell,  24  Pa.  88— §228,  n.  (20)   (n2). 

Babcock  v.  Day,  104  Pa.  4— §228,  n.  (24)  (z3). 

Bach  v.  Burke,  141  Pa,  649— §§43,  n.  (3)  (e) ;  228,  n.  (24)  (m). 

Baekenstoe  v.  Nine,  22  Pa.  Super.  29— §190,  n.  (12)   (a),  (13)   (d). 

Backenstoe  v.  O'Neill,  26  C.  C.  156— §136,  n.  (1). 

Backert  v.  Coal  Co.,  208  Pa.  362— §187,  n.  (1)   (b). 

Backestoss  v.  Com.,  8  Watts  286— §228,  n.  (25)   (e). 

Backman  v.  Gross,  150  Pa.  516— §§239,  n.  (2)   (h) ;  242,  n.  (1)   (d) ; 

n.  (3)   (d). 

Bailey's  Estate,  187  Pa.  381— §228,  n.  (18)  (m2). 
Bailey  v.  Board  of  Publication,  200  Pa.  406— §228,  n.  (19)  (a) ;  n.  (20) 

(n). 

Baily  v.  Baily,  44  Pa.  274— §§43,  n.  (9)   (k) ;  228,  n.  30)   (m). 
Bailey  v.  Coal  Co.,  20  Pa.  Super.  186— §228,  n.  (23)  (g). 
Bailey  v.  Coal  Co.,  139  Pa.  213— §228,  n.  (13)  (b) ;  n.  (27)   (h). 
Bailey  v.  Pittsburg,  207  Pa.  553— §187,  n.  (1)  (b),  (c). 
Bain  v.  Funk,  61  Pa.  185— §§66,  n.  (1)   (a) ;  146,  n.  (2)   (h). 
Bair  v.  Black,  10  W.  N.  C.  156— §126,  n.  (1)   (a),  (b). 
Bair  v.  Hubartt,  139  Pa.  96— §228,  n.  (24)   (b). 
Baird  v.  Ford,  152  Pa.  637— §228,  n.  (18)  (q). 
Baker  v.  Baker,  195  Pa.  407— §61,  n.  (2)  (a). 
Baker  v.  Hagey,  177  Pa.  128— §228,  n.  (19)  (a) ;  n.  (20)  (g),  (o). 
Baker  v.  Irish,  172  Pa.  528— §228,  n.  (21)   (a),  (c),  n.  (23)   (h),  (k). 
Baker  v.  Lewis,  33  Pa.  301— §161,  n.  (5)  (d). 
Baker  v.  Lewis,  4  Rawle  356— §228,  n.  (20)  (h). 
Baker  v.  Moore,  29  Pa.  Super.  301— §228,  n.  (22)   (n). 
Baker  v.  Williamson,  2  Pa.  116— §48,  n.  (1)   (a2). 
Baldi  v.  Ins.  Co.,  24  Pa.  Super.  275— §228,  n.  (21)  (h). 
Baldwin's  Appeal,  112  Pa.  2— §228,  n.  (24)   (r2). 
Ball  v.  Campbell,  134  Pa.  602— §228,  n.  (23)   (f). 
Ballentine  v.  White,  77  Pa.  20— §§82,  n.  (1)   (a) ;  228,  n.  (24)   (12). 
Baltimore  &  Ohio  R.  R.  v.  School  Dist.,  30  P.  L.  J.  187— §228,  n.  (24) 

(t2). 

Bandel  v.  Erickson,  3  Pa.  Super.  389— §228,  n.  (30)   (b). 
Bannon  v.  Bank,  14  Pa.  Super.  566— §228,  n.  (18)   (m). 
Barber's  Case,  86  Pa.  392— §2,  n.  (5),  (6). 
Barclay  v.  Colwell,  4  W.  N.  C.  440— §43,  n.  (3)   (1). 
Bare  v.  Hoffman,  79  Pa.  71— §243,  n.  (1)  (b). 

Baring  v.  Shippen,  2  Bin.  154— §§43,  n.  (9)   (g) ;  228,  n.  (30)  (n).      , 
Barker  v.  McCreary,  66  Pa.  162— §228,  n.  (13)   (b). 

599 


Bar-Bea  TABLE  OF  CASES. 


Barlott  v.  Forney,  187  Pa.  301— §§11,  n.   (4)    (c)  j  126,  n.   (4)    (h) ; 

140,  n.  (3)   (d). 

Barnes's  Ap.,  2  Penny.  506— §§48,  n.  (1)  (1) ;  182,  n.  (4)  (a). 
Barnes's  Est.,  221  Pa.  399— §228,  n.  (18)    (q). 
Barnes  v.  Com.,  11  W.  N.  C.  375— §161,  n.  (4)   (i). 
Barnes  v.  Rea  (No.  2),  219  Pa.  287— §228,  n.  (15)   (d). 
Barnes  v.  Snowdon,  119  Pa.  53— §228,  n.  (23)  (c). 
Barnett's  Case,  28  Pa.  Super.  361— §43,  n.  (3)   (b2). 
Barnett  v.  Becker,  25  Pa.  Super.  22— §228,  n.  (23)  (k). 
Barnett  v.  Reed,  51  Pa.  190— §228,  n.  (22)   (r). 
Barr  Twp.  Road,  29  Pa.  Super.  203— §§183,  n.   (2)    (f ) ;  185,  n.  (1) 

(h),  n.  (2)   (a);  186,  n.  (2). 
Barr's  Case,  188  Pa.  122— §9,  n.  (5). 
Barrington  v.  Bank,  14  S.  &  R.  405— §228,  n.  (13)    (b),  n.  (24)    (k), 

(w3). 

Barrington  v.  Phila.,  7  W.  N.  C.  178— §8,  n.  (4). 
Barris's  Est.,  43  Pa.  Super.  540— §228,  n.  (18)  (1). 
Bartdorf  v.  Bank,  81  Pa.  179— §228,  n.  (20)   (g). 
Bartle  v.  Saunders,  2  Grant  199— §228,  n.  (22)   (m2). 
Bartholomew  v.  Lehigh  Co.,  148— §228,  n.  (15)  (a). 
Bartlett  v.  Kingan,  19  Pa.  341— §§190,  n.  (14)  (a),(d) ;  228,  n.  (18)  (b). 
Bartley  v.  Williams,  66  Pa.  329— §228,  n.  (22)  (1). 
Bartlott  v.  Forney,  187  Pa.  301— §228,  n.  (18)   (g). 
Barto  v.  Traction  Co.,  37  Pa.  Super.  447— §240,  n.  (1)   (a). 
Bartolet's  Ap.,  1  Walk.  77— §185,  n.  (3)   (a). 

Barton  v.  Glasgow,  12  S.  &  R.  149— §§183,  n.  (4)  (h) ;  228,  n.  (19)  (a). 
Barwell  v.  Wirth,  61  Pa.  133— §161,  n.  (5)  (v). 
Bascom  v.  Mfg.  Co.,  182  Pa.  427— §228,  n.  (20)   (a). 
Bassler  v.  Niesly,  1  S.  &  R.  431— §§141,  n.  (1)   (a),  (b),  (c) ;  147,  n. 

(4)   (a);  161,  n.  (5)   (e). 

Bastian  v.  Philadelphia,  180  Pa.  227— §82,  n.  (3). 
Battles  v.  Sliney,  126  Pa.  460— §§183,  n.  (2)   (a);  187,  n.  (1)   (b). 
Bauer  v.  Angeny,  100  Pa,  429— §182,  n.  (4)  (o2). 
Baumgardner  v.  Burnham,  10  W.  N.  C.  445— §161,  n.  (5)   (n). 
Bavington  v.  R.  R.,  34  Pa.  358— §§82,  n.  (1)   (a) ;  228,  n.  (24)   (12). 
Baxter  v.  Graham,  5  Watts  418— §228,  n.  (13)   (b),  n.  (17)   (a),  (d). 
Beach's  Est.,  30  Pa.  Super.  572— §45,  n.  (3)   (j). 
Beale  v.  Com.,  25  Pa.  11— §§228,  n.  (17)  (a) ;  230,  n.  (1)   (g). 
Beale  v.  Dougherty,  3  Bin.  432— §§43,  n.  (2)   (o),  (e) ;  182,  n.  (2)   (i). 
Beale  v.  Kline,  183  Pa.  149— §228,  n.  (18)  (12). 
Beale  v.  Patterson,  6  S.  &  R.  89— §132,  n.  (1)  (a),  (2)   (a). 
Beale  v.  R.  R.,  86  Pa,  509— §90,  n.  (1)  (b). 
Beals  v.  See,  10  Pa.  56— §228,  n.  (24)  (y). 
Beam  v.  Warfel,  9  Lane.  Bar.  185— §239  (i). 
Bean's  Road,  35  Pa.  280— §§183,  n.  (3)   (c) ;  228,  n.  (11)   (e),  (f),  n. 

(15)  (i),  (j). 

Beard  v.  Heck,  13  Pa.  Super.  390— §228,  n.  (20)   (a). 
Beard  v.  Ry.,  3  Pa.  Super.  171— §§82,  n.  (1)   (a) ;  228,  n.  (24)   (12;. 
Beardslee  v.  Township,  188  Pa.  496— §228,  n.  (25)   (d). 
Bearmer's  Ap.,  126  Pa.  77— §228,  n.  (30)   (a). 

600 


TABLE  OF  CASES.  Bea-Ber 


Beatty  v.  Harris,  205  Pa.  377— §§11,  n.  (4)   (c) ;  150,  n.  (2)   (a) ;  184, 

n.  (2)   (a). 

Beatty  v.  Safe  Deposit  Co.,  226  Pa.  430— §49,  n.  (2)   (d). 
Beaumont  v.  Beaumont,  166  Pa.  615— §71,  n.  (1)   (c). 
Beaver  Boro.  v.  R.  R.,  217  Pa.  280— §183,  n.  (2)   (q) ;  n.  (4)   (b). 
Beck  v.  Courtney,  13  W.  N.  C.  302— §163,  n.  (1)  (a) ;  n.  (3)   (b). 
Beck  v.  Cricket  Club,  45  Pa.  Super.  358— §192,  n.  (2)  (c) ;  page  529,  Ap. 
Beck  v.  Penna.  R.  R.  Co.,  148  Pa.  271— §187,  n.  (1)   (b). 
Becker  v.  Goldachild,  9  Pa.  Super.  50— §228,  n.  (15)  (a). 
Becker  v.  Ry.,  195  Pa.  502— §121,  n.  (2)   (e). 
Becker  v.  Yeager,  1  Pa.  Super.  107— §228,  n.  (18)   (qa). 
Bedell  v.  Errett,  8  Sad.  418— §228,  n.  (20)   (a),  (m). 
Begley  v.  R.  R.,  201  Pa.  84— §228,  n.  (9)   (b). 
Behrens  v.  Mountz,  37  Pa.  Super.  326— §228,  n.  (29)  (i). 
Beitler  v.  Zeiarler,  1  P.  &  W.  135— §43,  n.  (3)   (q2). 
Belber  Co.  v.  Silberblatt,  44  Pa.  Super.  32— §§183,  n.  (4)  (b) ;  228,  n. 

(24)    (p2). 

Belcher's  Est.,  205  Pa.  153— §45,  n.  (3)   (b). 
Bell  v.  County,  149  Pa.  381— §54,  n.  (1). 
Bell  v.  Bell,  9  Watts  47— §146,  n.  (2)   (g). 
Bellah  v.  Poole,  202  Pa.  71— §§43,  n.  (3)   (p) ;  161,  n.  (4)   (i) ;  228  n. 

(24)   (u). 

Bellas  v.  Hays,  5  S.  &  R.  427— §228,  n.  (22)   (h). 
Bellows  v.  Railroad  Co.,  157  Pa.  51— §228,  n.  (23)   (e). 
Bemus  v.  Clark,  9  Pa.  251— §§51,  n.  (1) ;  n.   (17)    (a) ;  228,  n.  (24) 

(m3);  n.  (18)   (o2). 

Bemus  v.  Howard,  3  Watts  255— §228,  n.  (22)   (h). 
Ben  Franklin  Coal  Co.  v.  Water  Co.,  25  Pa.  Super.  628— §43,  n.  (2) 

(d). 
Benjamin  v.  Armstrong,  2  S.  &  R.  392— §§43,  n.  (2)   (x) ;  182,  n.  (2) 

(f2);  228,  n.  (30)    (f). 

Benner  v  Fire  Asso.,  229  Pa.  75— §228,  n.  (15)  (a),  (g). 
Benner  v.  Hauser,  11  S.  &  R.  352— §187,  n.  (4)   (b),  (c),  (d). 
Bennethum  v.  Bowers,  133  Pa.  332— §43,  n.  (2)   (d),  n.  (3)   (d). 
Benscotter  v.  Long,  167  Pa.  595— §243,  n.  (1)   (b),  (d). 
Benson  v.  Maxwell,  105  Pa.  274— §228,  n.  (20)  (t) ;  n.  (22)  (w2). 
Bent  v.  Twp.  Road,  41  Pa.  Super.  57— §190,  n.  (13)  (q). 
Bentley  v.  Cranmer,  137  Pa.  244.— §228,  n.  (19)   (b) ;  n.  (22)   (k). 
Benzinger  Twp.  Road,  135  Pa.  176— §§183,  n.  (2)  (f ) ;  194,  n.  (1)  (d) ; 

228,  n.  (7)  (a),  (e). 

Berg's  Petition,  139  Pa.  354— §182,  n.  (4)   (j). 
Berg  v.  Moore,  7  Pa.  94— §228,  n.  (18)   (o2). 
Berger  v.  Palethorp,  2  W.  N.  C.  297— §228,  n.  (15)  (a). 
Bergner  v.  Thompson,  74  Pa.  168— §228,  n.  (23)  (h). 
Beringer  v.  Lutz,  43  P.  L.  J.  (0.  S.)  106— §117,  n.  (1)   (b). 
Beringer  v.  Lutz,  179  Pa.  1— §§148,  n.  (1)   (d) ;  155,  n.  (1)   (f ) ;  228, 

n.  (22)   (n),  n.  (31)   (a). 
Berks  Co.  Poor  Directors  v.  Poor  Directors,  21  Pa.  Super.  627 — §85, 

n.  (2)  (a). 

601 


Ber-Blu  TABLE  OF  CASES. 


Berks  County  v.  Linderman,  30  Pa.  Super.  119— §§54,  n.   (3);  182, 

n.  (4)   (u2). 

Berks  Road  v.  Myers,  6  S.  &  R.  12— §187,  n.  (4)   (b). 
Bernstein  v.  Ernst,  194  Pa.  432— §228,  n.  (26)  (c). 
Berry  v.  Vantries,  12  S.  &  R.  89— §222,  n.  (1)   (b). 
Berryhill  v.  Dowding,  8  Watts  313— §222,  n.  (1)   (a)- 
Bethel  Twp.  Road,  44  Pa.  Super.  96— §126,  n.  (3)   (k). 
Betz's  Est.,  15  Pa.  Super.  563— §228,  n.  (18)   (q). 
Betz  v.  Delbert,  16  W.  N.  C.  360— §§51,  n.  (4)   (a);  288,  n.  (18)   (s). 
Bevan  v.  Ins.  Co.,  9  W.  &  S.  187— §82,  n.  (3)   (a). 
Biddle  v.  King,  1  Pbila.  394— §66,  n.  (3)   (a). 
Bidwell  v.  Evans,  156  Pa.  30— §187,  n.  (1)  (b). 
Bidwell  v.  Pittsburg,  114  Pa.  535— §228,  n.  (18)   (t). 
Biehl  v.  Assurance  Co.,  38  Pa.  Super.  110— §228,  n.  (20)   (r). 
Bierly  v.  Sever,  228  Pa.  289— §228,  n.  (18)  (m). 
Bierly's  Est.,  81  Pa.  419— §229,  n.  (2)    (a). 
Bigger 's  Ap.,  1  Mona.  365— §182,  n.  (4)   (k). 
Bingham  v.  Gerthne,  19  Pa.  418— §228,  n.  (15)  (a). 
Bigley  v.  Jones,  114  Pa.  510— §228,  n.  (23)  (a). 
Binswanger  v.  Fisher,  3  W.  N.  C.  340— §242,  n.  (1)  (b). 
Birch  v.  R.  R.,  165  Pa.  339— §43,  n.  (10)   (c). 
Bisbing  v.  Bank,  93  Pa.  79— §228,  n.  (20)   (b),  n.  (21)   (h). 
Bishop  v.  Culver,  1  W.  N.  C.  272— §44,  n.  (6)  (e). 
Bishop  v.  Goodhart,  135  Pa.  374— §228,  n.  (22)   (a). 
Bitler's  Est.,  30  Pa.  Super.  84—  §43,  n.  (1)   (g). 
Bitner  v.  Bitner,  65  Pa.  347— §228,  n.  (21)   (a). 
Bitzer  v.  Hahn,  14  S.  &  R.  232— §228,  n.  (22)   (o). 
Bixler  v.  Lesh,  6  Pa.  Super.  459— §228,  n.  (23)  (1). 
Black's  Case,  18  Pa.  434— §§43,  n.  (3)   (n2) ;  44,  n.  (6)    (k) ;  228,  n. 

(24)   (J3). 
Black  v.  Black,  206  Pa.  116— §§150,  n.  (2)    (a) ;  227,  n.  (1) ;  228,  n. 

(15)   (a). 

Black  v.  R.  R.,  18  Dist.  66— §43,  n.  (10)   (c),  (e). 
Blackstock  v.  Leidy,  19  Pa.  335— §228,  n.  (13)  (b) ;  n.  (15)  (g). 
Blair  Coal  Co.  v.  Lloyd,  3  W.  N.  C.  103— §228,  n.  (20)   (a). 
Blake  v.  Metzgar,  150  Pa.  291— §88,  n.  (1)   (a) ;  228,  n.  (30)   (d). 
Blake  Tobacco  Co.  v.  Posluszsy,  31  Pa.  Super.  602— §228,  n.  (24)  (z3). 
Blaney's  Est.,  37  Pa.  Super.  76— §43,  n.  (5)   (j) ;  228,  n.  (18)   (q). 
Blank  v.  Barnhart,  17  Pa.  Super.  214— §§185,  n.  (1)   (c) ;  186,  n    (1) 

(a);  228,  n.  (19)  (a),  (d),  (h),  n.  (20)   (a),  (b),  n.  (21)  (c. 
Blank  v.  Early,  115  Pa.  359— §228,  n.  (8)   (j). 
Blankenburg  v.  Transit  Co.,  Jan.  Term,  1909.    No.  323,  Misc.  Docket 

No.  2— §367,  n.  (2)    (e). 

Blanson  v.  Kitchenmian,  148  Pa.  541— §228,  n.  (20)   (e). 
Blauvelt  v.  Kemon,  196  Pa.  128— §74,  n.  (1)  (s). 
Bletz  v.  Haldeman,  26  Pa.  403— §43,  n.  (5)   (c). 
Bleadingheiser  v.  Crumrine,  34  Pa.  Super.  241— §187,  n.  (1)  (b). 
Blockley  Turnpike  Co.'s  Pet.,  140  Pa.  177— §126,  n.  (1)   (a). 
Blodgett  v.  Hagen,  1  W.  N.  C.  180— §242,  n.  (1)   (a). 
Blume  v.  Hartman,  115  Pa.  32— §228,  n.  (24)    (j2). 

602 


TABLE  OF  CASES.  Bly-Bra 


Blythe  Twp.  v.  Morris,  9  Sad.  515— §74,  n.  (1)   (e). 

Boal's  Ap.,  2  Rawle  37— §243,  n.  (1)   (b) ;  n.  (4)   (e),  (f). 

Boas  v.  Heister,  3  S.  &  R.  271— §43,  n.  (10)   (g). 

Bookman's  Ap.,  2  Walk.  285— §43,  n.  (2)   (j). 

Boden  v.  Irwin,  92  Pa.  345— §228,  n.  (20)   (s2). 

Boffenmyer's  Est.,  150  Pa.  540 — §228,  n.  (18)   (q). 

Bogle  v.  Kreitzer,  46  Pa.  465— §228,  n.  (23)   (e). 

Boice  v.  Zimmermann,  3  Pa.  Super.  181 — §186,  n.  (1)  (c). 

Bolton  v.  Hey,  168  Pa.  418— §50,  n.  (5)  (c). 

Bond  v.  R.  R.,  218  Pa.  34— §88,  n.  (3)  (a),  (b). 

Bondz  v.  Penna.  Co.,  138  Pa.  153— §82,  n.  (2)   (a). 

Bonner  v.  Campbell,  48  Pa.  286— §43,  n.  (7)   (m). 

Bonner  v.  Herrick,  99  Pa.  220— §228,  n.  (21)   (a). 

Book  v.  Sharpe,  189  Pa.  44—  §§43,  n.  (2)  (i),  n.  (5)  (f) ;  66,  n.  (1)  (c), 

(d). 

Boon  &  Hill  Co.  v.  Trust  Co.,  56  Pitts.  L.  J.  428— §240,  n.  (1)  (d). 
Bordo  v.  R.  R.,  141  Pa.  484— §§190,  n.  (12)   (e) ;  228,  n.  (18)   (v),  n. 

(18)   (n2). 

Borham  v.  Davis,  146  Pa.  72— §228,  n.  (19)  (a),  (h). 
Borland  v.  Meurer,  139  Pa.  513— §185,  n.  (3)  (a). 
Bosler  v.  Johns,  2  P.  &  W.  331— §43,  n.  (2)   (k2). 
Bousquet's  Ap.,  206  Pa.  534— §§183,  n.  (4)  (b) ;  196,  n.  (1)   (a) ;  228, 

n.  (11))   (e),  n.  (15)   (b). 

Bovard  v.  Christy,  14  Pa.  267— §228,  n.  (20)   (c). 
Bow  v.  Higgins,  112  Pa.  1— §88,  n.  (1)  (a). 
Bower  v.  Blessing,  8  S.  &  R.  243— §228,  n.  (24)  (z3). 
Bowers  v.  Leeds,  7  Pa.  L.  J.  288— §44,  n.  (6)  (s). 
Boyce  v.  Asso.,  218  Pa.  494— §186,  n.  (1)  (a) ;  187,  n.  (4)  (f). 
Bowers  v.  Bennethum,  133  Pa.  306 — §186,  n.  (2). 
Boyce  v.  Asso.,  218  Pa.  494— §§186,  n.  (1)   (a) ;  187,  n.  (4)   (f ) ;  198, 

n.  (2)   (a). 

Boyd  v.  Boyd,  1  Watts  365— §228,  n.  (25)  (a). 
Boyle's  License,  190  Pa.  577— §121,  n.   (1)    (b) ;  n.  (2)    (a),  (b) ;  n. 

(3)    (a). 

Boyle  v.  Com.,  107  Pa.  20— §46,  n.  (2)   (d). 
Boyle  v.  Mahoney  City,  187  Pa.  1— §88,  n.  (1). 
Boyle  v.  Hazelton,  8  Kulp  239— §228,  n.  (20)   (m). 
Bracken  v.  R.  R.,  222  Pa.  410— §228,  n.  (20)  (n) ;  n.  (22)  (j). 
Bracken  v.  R.  R.,  32  Pa.  Super.  22— §232,  n.  (1)  (f),  (g). 
Brackney  v.  Crafton  Boro.,  31  Pa.  Super.  413— §80,  n.  (6)  (c). 
Braden  v.  Cook,  18  Pa.  Super.  156—  §228,  n.  (22)   (n). 
Bradford  Clark  Co.  v.  R.  R.,  27  Pa.  Super.  251— §228,  n.  (23)   (h). 
Bradford  Twp.  v.  Twp.,  57  Pa.  495— §§48,  n.  (1)  (e2) ;  146,  n.  (2)  (a) ; 

161,  n.  (4)  (i). 

Bradlee  v.  Whitney,  108  Pa.  362— §228,  n.  (18)   (t). 
Bradley  v.  Vernon,  166  Pa.  603— §190,  n.  (12)  (a),  (b),  (c). 
Bradley  v.  Flowers,  4  Yeates  436— §228,  n.  (17)   (d). 
Bradley  v.  Gaghan,  208  Pa.  511— §228,  n.  (18)   (s). 
Bradley  v.  Grosh,  8  Pa.  45— §228,  n.  (23)  (e). 
Bradley  v.  Potts,  155  Pa.  418— §43,  n.  (2)  (h). 

603 


Bra-Bro  TABLE  OF  CASES. 


Bradwell  v.  Railway  Co.,  139  Pa.  404— §228,  n.  (11)   (a). 

Brady  St.,  99  Pa.  591— §56,  n.  (3)  (b). 

Brady  v.  Shisler,  1  W.  N.  C.  297— §228,  n.  (5)   (c). 

Brainerd  v.  Davis,  21  Pa.  Super.  599— §§50,  n.  (2)  (c) ;  146,  n.  (1)  (b). 

Branch  Twp.  Road,  4  Leg.  Gaz.  413— §§43,  n.  (6)  (x),  (g2)  182,  n.  (4) 

(k). 

Brands  v.  Wise,  16  Pa.  Super.  189— §228,  n.  (15)  (e). 
Brannan  v.  Bond,  18  Pa.  Super.  535— §242,  n.  (1)   (g). 
Bratton  v.  Mitchell,  5  Watts  69— §147,  n.  (4)   (a). 
Bratton  v.  Mitchell,  3  Pa.  44— §161,  n.  (6)  (b). 
Braunschweiger  v.  Waits,  179  Pa.  27— §228,  n.  (20)   (h). 
Breading  v.  Blocher,  29  Pa.  347— §243,  n.  (1)  (b),  (f) ;  n.  (5)  (a). 
Brecht  v.  McParland,  187  Pa.  634— §228,  n.  (1)   (g). 
Breinig  v.  Breinig,  26  Pa.  161— §228,  n.  (24)   (y2). 
Breinisholtz  v.  R.  R.,  229  Pa.  88— §228,  n.  (20)   (h2) ;  Id.,  n.  (29)   (1). 
Breitenbach  v.  Bush,  44  Pa.  313— §48,  n.  (1)   (z). 
Breitweiser  Co.  v.  Scott,  33  Pa.  Super.  627— §§43,  n.  (3)    (v) ;  77,  n. 

(2)   (c). 

Brendlinger  v.  Kiegel,  37  Pa.  Super.  474— §43,  n.  (3)  (o). 
Brennan's  License,  33  Pa.  Super.  252— §182,  n.  (4)   (j). 
Breneman's  Est.,  65  Pa.  298— §228,  n.  (25)   (k). 
Brennan's  Est.,  65  Pa.  16— §228,  n.  (24)    (b),  (c). 
Brennan  v.  Ins.  Co.,  148  Pa.  199— §228,  n.  (24)  (b). 
Brentlinger  v.  Brentlinger,  4  Rawle  241— §132,  n.  (2)  (a),  (b). 
Brethren  Aid  Society  v.  McDermond,  12  W.  N.  C.  73— §228,  n.  (25) 

(a). 

Brew  v.  Hastings,  206  Pa.  155— §228,  n.  (2)   (h). 
Brewster  v.  Sterrett,  32  Pa.  115— §228,  n.  (20)   (m),  n.  (25)   (a). 
Bricker  v.  Lightner,  40  Pa.  197— §228,  n.  (13)   (e). 
Bright  v.  Coal  Mining  Co.,  10  Phila.  609— §1,  n.  (3). 
Brightly  v.  McAleer,  4  Pa.  Super.  563— §243,  n.  (1)   (d),  (e). 
Brindle  v.  Brindle,  50  Pa.  387— §§190,  n.  (12)   (a) ;  n.  (13)   (a) ;  193, 

n.  (3). 

Brindle  v.  Mcllvain,  9  S.  &  R.  74— §§161,  n.  (5)   (j) ;  228,  n.  (31)  (a). 
Brinks  v.  Heise,  84  Pa.  246— §228,  n.  (24)   (a2). 
Brinser  v.  Longnecker,  169  Pa.  51— §228,  n.  (19)   (a). 
Brinton  v.  Walker,  15  Pa.  Super.  449— §§186,  n.  (1)   (c),  (d) ;  228.  n. 

(20)   (a),  n.  (21)    (f). 

Briston  v.  Tasker,  135  Pa.  110— §190,  n.  (3)   (b),  (c). 
Brittain  v.  Bank,  5  W.  &  S.  87— §228,  n.  (22)   (j2). 
Broadnax  v.  R.  R.,  157  Pa.  140— §187,  n.  (1)   (b). 
Bromley  v.  Lippincott,  184  Pa.  462— §242,  n.  (1)    (k). 
Brooke's  Est.,  24  Pa.  Super.  430— §228,  n.  (1)   (a). 
Brook  v.  Church,  135  Pa.  137— §198,  n.  (1)   (a). 
Brooks  v.  Railroad  Co.,  2  Pa.  Super.  581— §228,  n.  (23)   (e). 
Brookville  v.  Arthurs,  152  Pa.  334— §228,  n.  (19)  (a). 
Bross  v.  Com.,  71  Pa.  262— §§92,  n.  (2)   (c) ;  182,  n.  (4)   (j2) ;  228,  n. 

(24)  (q4). 
Brothers  v.  Mitchell,  157  Pa.  484— §228,  n.   (4)    (j) ;  n.  (22)    (n) ;  n. 

(28)  (d);232,  n.  (1)   (q),  n.  (2)   (p),  n.  (3)   (a). 

604 


TABLE  OF  CASES.  Bro-Buc 


Brotzman's  Appeal,  119  Pa.  645— §228,  n.  (7)  (g). 

Brouse  v.  Aliger,  36  Pa.  Super.  517— §187,  n.  (1)  (b). 

Brown's  Ap.,  26  Pa.  490— §§43,  n.  (2)  (o) ;  66,  n.  (2)  (c) ;  182,  n.  (2) 

Brown's  Case,  18  Pa.  Super.  409— §146,  n.  (2)  (b). 

Brown's  Est.,  213  Pa.  604— §§228,  n.  (6)   (i) ;  229,  n.  (2)   (g). 

Brown's  License,  18  Pa.  Super.  409— §182,  n.  (4)   (j). 

Brown  v.  Bausett,  2  Bin.  33— §146,  n.  (1)   (c). 

Brown  v.  Boom  Co.,  109  Pa.  57— §228,  n.  (18)   (t). 

Brown  v.  Boro.,  12  Pa.  C.  C.  313— §§48  (A) ;  56,  n.  (3)   (a). 

Brown  v.  Boro.,  47  Pa.  Super.  413— pp.  517,  522,  Ap. 

Brown  v.  Brooks,  25  Pa.  210—  §§186,  n.  (1)   (a) ;  187,  n.  (1)   (b). 

Brown  v.  Caldwell,  10  S.  &  R.  114— §228,  n.  (20)   (s). 

Brown  v.  Com.,  76  Pa.  319— §228,  n.  (19)    (e). 

Brown  v.  Dempsey,  95  Pa.  243— §228,  n.  (18)   (t). 

Brown  v.  Directors,  18  Pa.  78— §146,  n.  (2)   (h). 

Brown  v.  Downing,  4  S.  &  R.  494— §161,  n.  (4)  (n). 

Brown  v.  Finney,  67  Pa.  214— §228,  n.  (24)   (a2). 

Brown  v.  Kelso,  2  P.  &  W.  427— §228,  n.  (13)  (p). 

Brown  v.  Loureir,  4  W.  N.  C.  538— §§163,  n.  (3)   (g) ;  169,  n.  (2)  (a). 

Brown  v.  Montgomery,  21  Pa.  Super.  262— §228,  n.  (19)   (a) ;  n.  (20) 

(a),  (i),  (m). 

Brown  v.  Parkinson,  56  Pa.  336— §182,  n.  (2)  (v). 
Brown  v.  Pittsburg,  1  Mona.  8— §§88,  n.  (1)  (a) ;  228,  n.  (30)  (d). 
Brown  v.  Railroad  Co.,  39  L.  I.  179— §228,  n.  (23)   (h). 
Brown  v.  Ry.,  43  Pa.  Super.  61— §228,  n.  (20)   (r). 
Brown  v.  Ridgway,  10  Pa.  42— §§161,  n.  (4)  (c) ;  228,  n.  (24)  (u). 
Brown  v.  School  Dist.,  1  Mona.  Ill— §126,  n.  (1)   (a). 
Brown  v.  Waite,  38  Pa.  Super.  216— §228,  n.  (24)   (p2). 
Brown  v.  Water  Co.,  213  Pa.  440— §§185,  n.  (3)  (a) ;  187,  n.  (1)  (g). 
Browner  v.  Kantner,  9  Pa.  Super.  95— §§77,  n.  (3)    (a) ;  102,  n.  (2) 

(d) ;  108,  n.  (3)  (b). 
Browning  v.  McManus,  1  Whar.  177— §§51,  n.  (4)    (a) ;  288,  n.   (17) 

(a),  n.  (18)   (o2). 

Brubaker  v.  Okeson,  36  Pa.  519— §228,  n.  (23)   (1). 
Bruce  v.  Pittsburgh,  161  Pa.  517— §36,  n.  (3)  (a). 
Bruce  v.  Pittsburgh,  166  Pa.  152— §36,  n.  (2)   (b). 
Bruch  v.  Phila.,  181  Pa.  588— §228,  n.  (18)   (t). 
Bryan  v.  Com.,  27  Pa.  284— §228,  n.  (1)   (b),  n.  (17)   (a),  (d). 
Bryne  v.  R.  R.,  19  Pa.  Super.  531— §228,  n.  (23)  (h). 
Bryner  v.  Bridge  Co.,  190  Pa.  617— §71,  n.  (1)  (g). 
Bryson's  Road,  2  P.  &  W.  207— §146,  n.  (1)  (g). 
Buchanan  v.  Banks,  203  Pa.  599— §243,  n.  (3)  (e). 
Buck  Mountain  Coal  Co.  v.  Coal  &  Nav.  Co.,  2  W.  N.  C.  241— §36,  n. 

(2)   (b). 

Buck  v.  McKeesport,  223  Pa.  211— §228,  n.  (8)   (b). 
Buck  v.  Railroad  Co.,  150  Pa.  170— §228,  n.  (20)   (h). 
Buckman  v.  Davis,  28  Pa.  211— §51,  n.  (4)  (a). 
Buckmeyer  v.  Dubbs,  5  Bin.  29— §222,  n.  (1)   (e). 
Bucknor's  Ap.,  2  Mona.  774— §242,  n.  (2)   (b),  (f). 

605 


Buc-Cam  TABLE  OF  CASES. 


Buckwalter  v.  Russell,  119  Pa.  495— §51,  n.  (4)    (a). 

Bugbee's  Ap.,  110  Pa.  331— §228,  n.  (18)  (z). 

Bulkley  v.  Wood,  4  Pa.  Super.  391— §228,  n.  (18)    (s). 

Bull's  Ap.,  24  Pa.  286— §§183,  n.  (2)  (q) ;  185,  n.  (1)  (g),  n.  (2)  (a) ; 

228,  n.  (1)  (b),n.  (17)  (a),  n.  (18)  (q). 
Bunce  v.  Stanford,  27  Pa.  265— §228,  n.  (25)   (1). 
Bunce  v.  Wightman,  29  Pa.  335— §228,  n.  (24)   (z3). 
Bunting  v.  Young,  5  W.  &  S.  188— §228,  n.  (25)  (a). 
Burd  v.  Dansdale,  2  Bin.  80— §161,  n.  (4)   (d). 
Burd  v.  McGregor,  2  Grant  353— §228,  n.  (22)  (p). 
Burdge  v.  Weiler,  2  W.  N.  C.  502— §228,  n.  (11)   (a). 
Burk  v.  McMullen,  4  Pa.  317— §161,  n.  (9)   (c). 
Burke  v.  Maxwell,  81  Pa.  139— §228,  n.  (20)  (d),  n.  (21)   (i),  (1). 
Burkhart's  Est.,  25  Pa.  Super.  514— §239,  n.  (2)   (c). 
Burkholder  v.  Lapp.  31  Pa.  322— §228,  n.  (25)  (a). 
Burkholder  v.  Stahl,  58  Pa.  371— §§183,  n.  (2)  (a) ;  n.  (4)   (e) ;  186,  n. 

(1)  (a) ;  200,  n.  (1)  (b),  (2) ;  228,  n.  (19)   (a) ;  page  527,  Ap. 
Burlington,  etc.,  Ferry  Co.  v.  Steamboat  Co.,  2  W.  N.  C.  453— §228,  n. 

(19)   (a). 

Burns  v.  Bank,  1  P.  &  W.  395— §§43,  n.  (2)  (z) ;  182,  n.  (2)   (b.2). 
Burns  v.  R.  R.,  222  Pa.  406— §228,  n.  (24)   (m),  (p). 
Burns  v.  Sutherland,  7  Pa.  103— §228,  n.  (19)   (a). 
Burns  v.  Thornburg,  3  Watts  78— §228,  n.  (24)  (d4). 
Burr  v.  Sim,  4  Wh.  150— §228,  n.  (21)   (a). 
Burson  v.  Ins.  Co.,  136  Pa.  267— §187,  n.  (4)  (a). 
Busch  v.  Calhoun,  14  Pa.  Super.  578— §228,  n.  (20)  (u). 
Bushvalley  Twp.  v.  Allegheny  Co.,  25  Pa.  Super.  595— §228,  n.   (11) 

(e),  (f). 

Butchers'  Ice  &  Coal  Co.  v.  Phila.,  156  Pa.  54— §187,  n.  (1)  (b). 
Byers  v.  Com.,  42  Pa.  89— §37,  n.  (2)   (d). 
Byers  v.  Byers,  208  Pa.  23— §228,  n.  (18)   (m). 
Byles  v.  Hazlett,  11  W.  N.  C.  212— §228,  n.  (21)  (h). 
Byrne  v.  Grossman,  65  Pa.  310— §228,  n.  (1)   (a),  n.  (17)   (a). 

Cabargo  v.  Seegar,  17  Pa.  514— §228,  n.  (17)   (a),  (d). 

Cadbury  v.  Nolan,  5  Pa.  320— §228,  n.  (19)   (n) ;  n.  (21)  (h). 

Cadmus  v.  Jackson,  52  Pa.  295— §43,  n.  (5)  (z),  n.  (7)  (1). 

Cadwallader  v.  Brodie,  8  Sad.  609— §228.  n.  (25)   (h). 

Caflisch  v.  Logue,  216  Pa.  146— §71,  n.  (1)   (i). 

Cahill  v.  Benn,  6  Bin.  99— §243,  n.  (2)   (b). 

Cake  v.  Cake,  106  Pa.  472— §§67,  n.  (1)   (d),  (i) ;  126,  n.  (6)   (a). 

Cake's  Appeal,  110  Pa,  65— §228,  n.  (18)  (z). 

Caldwell  v.  Hallder,  40  Pa.  160— §228,  n.  (19)   (a). 

Caldwell  v.  Express  Co..  26  Pa.  Super.  465— §228,  n.  (24)  (i2). 

Caldwell  v.  Thompson,  1  Rawle  370— §228,  n.  (24)   (f). 

Caldwell  v.  Remington,  2  Whar.  132— §228,  n.  (24)   (f). 

Calhoun  v.  Laundry,  220  Pa.  281— §228,  n.  (22)  (c). 

Calhoun  v.  Logan,  22  Pa,  46— §§146,  n.  (2)  (h) ;  161,  n.  (4)  (1). 

Calvert  v.  Good,  95  Pa.  65— §228,  n.  (23)  (e). 

Cambria  County  v.  Madison  Twp.,  138  Pa.  109— §85,  n.  (2)   (d). 

606 


TABLE  OF  CASES.  Cam-Cas 


Cambria  Iron  Co.  v.  Leidy,  226  Pa.  122— §§91,  n.  (2) ;  228,  n.  (15)  (a). 
Camden,  etc.,  Ry.  v.  Hoosey,  99  Pa.  492— §228,  n.  (23)   (c). 
Camden,  etc.,  Ferry  Co.  v.  Monaghan,  10  W.  N.  C.  46 — §§228,  n.  (18) 

(t);242,  n.  (2)  (a). 

Cameron  v.  Paul,  11  Pa.  277— §239,  n.  (1)  (a);  n.  (2)  (o). 
Cameron  v.  Russell,  40  Pa.  Super.  405— §228,  n.  (24)  (p2). 
Cameron  v.  Traction  Co.,  216  Pa.  191— §§187,  n.  (1) ;  190,  n.  (12)  (p) ; 

198,  n.  (2)  (a). 

Camp  v.  Welles,  11  Pa.  206— §126,  n.  (3)   (a). 
Campbell's  Est.,  39  Pa.  Super.  138— §228,  n.  (18)  (h),  (k),  (1). 
Campbell  v.  Erb.,  35  Pa.  Super.  436,  §§42,  n.  (3);  182,  n.  (4)    (g2), 

n.  (24)   (c4). 

Campbell  v.  Asso.,  172  Pa.  561— §228,  n.  (19)   (a). 
Camp  Hill  Boro.,  142  Pa.  511— §§42,  n.  (3);  48,  n.  (1)   (d),  n.  (4); 

182,  n.  (4)   (y). 
Campbell  v.  Floyd,  153  Pa.  84— §§43,  n.  (2)  (c) ;  228,  n.  (28)  (g) ;  232, 

n.  (1)  (k). 

Campbell  v.  Harton,  28  Pa.  Super.  494— §148,  n.  (1)  (h). 
Canavan  v.  Paye,  34  Pa.  Super.  91— §228,  n.  (18)   (g),  n.  (24)   (q3). 
Canole  v.  Allen,  222  Pa.  156— §183,  n.  (2)  (r) ;  n.  (5)  (e). 
Carbondale  First  National  Bank  v.  Cowperthwaite,  1  Wilcox  273 — 

§163,  n.  (3)   (d). 
Card  v.  Columbia  Twp.,  91  Pa.  254— §§185,  n.  (1)  (b) ;  186,  n.  (1)  (c) ; 

187,  n.  (1)  (b);228,  n.  (20)  (a). 

Carey  v.  Buckley,  192  Pa.  276— §228,  n.  (18)  (d2),  n.  (22)   (q),  (a2). 
Carey  v.  Gobbet,  2  Y.  277— §161,  n.  (4)   (b). 
Carlisle  v.  Woods,  7  S.  &  R.  207— §183,  n.  (4)  (a). 
Carlson's  License,  127  Pa.  330— §182,  n.  (4)   (c),  (e). 
Carman  v.  Navigation  Co.,  2  W.  N.  C.  720 — §228,  n.  (20)   (a). 
Carman  v.  Noble,  9  Pa.  366— §228,  n.  (3)   (a). 
Carman  v.  R.  R.,  195  Pa.  440— §228,  n.  (22)   (f2). 
Cam  v.  Fillman,  10  W.  N.  C.  152— §228,  n.  (25)  (t). 
Carothers  v.  Dunning,  3  S.  &  R.  373— §228,  n.  (19)   (a) ;  (20)   (a). 
Carothers  v.  Ry.,  229  Pa.  558— §228,  n.  (29)  (k). 
Carpenter's  Case,  4  Pa.  222— §228,  n.  (18)   (n2). 
Carpenter's  Case,  14  Pa.  486— §§48,  n.  (1)    (x),  n.   (2)    (a);  182,  n. 

(4)  (b). 

Carpenter's  Ap.,  11  W.  N.  C.  162— §182,  n.   (4)    (t2). 
Carpenter  v.  Lancaster,  212  Pa.  581— §§146,  n.  (2)    (a) ;  228,  n.  (2) 

(h),  n.  (24)   (p2). 

Carpenter  v.  Lancaster,  22  Lane.  L.  R.  33— §228,  n.  (19  (a). 
Carpenter  v.  Mayer,  5  Watts  483— §228,  n.  (22)  (h). 
Carrol  v.  Barnes  &  Erb  Co.,  11  Pa.  Super.  590— §110,  n.  (2)    (a). 
Carson  v.  Bromley,  184  Pa.  549— §228,  n.  (18)   (b). 
Carson  v.  Hosiery  Co.,  15  Pa.  Super.  476 — §190,  n.  (14)  (b). 
Carter  v.  Caldwell,  147  Pa.  370— §§43,  n.  (2)    (t),  n.  (3)   (v) ;  77,  n. 

(2)   (a),  (c). 

Carter  v.  Henderson,  224  Pa.  319— §228,  n.  (14)  (b). 
Casey  v.  Canning,  39  Pa.  Super.  94— §228,  n.  (3)  (h). 
Cash's  Ap.,  1  Pa.  166— §§43,  n.  (6)   (d2) ;  66,  n.  (4)   (b) ;  222,  n.  (1) 

(a). 

607 


Cas-Che  TABLE  OF  CASES. 


Cassel  v.  Duncan,  2  S.  &  R.  57— §243,  n.  (1)   (b),  (g). 

Cassell  v.  Cooke,  8  S.  &  R.  296— §§228,  n.  (20)   (o2)  243,  n.  (4)  (g). 

Cassidy  v.  Knapp,  167  Pa.  305— §11,  n.  (4)   (c). 

Cassville  Boro  Road,  4  Pa.  Super.  511— §126,  n.  (1)  (a),  n.  (4)  (j). 

Cathcart  v.  Com.,  37  Pa.  108— §§146,  n.  (2)   (a) ;  228,  n.  (1)    (a) ;  n. 

(17)   (a);  n.  (19)   (b) ;  n.  (21)   (a) ;  n.  (23)   (g) ;  n.  (24)   (P2). 
Catherine  and  Frankstown  Twps.,  31  Pa.  303— §146,  n.  (2)   (h). 
Catlin  v.  Robinson,  2  Watts,  373— §228,  n.  (24)   (z3). 
Catterson's  Ap.,  100  Pa.  9— §45,  n.  (3)   (c). 
Cattison  v.  Cattison,  22  Pa.  275— §228,  n.  (19)   (a). 
Catts  v.  Catts,  37  Pa.  Super.  598— §228,  n.  (24)   (r2),  (z2). 
Cauffman  v.  Long,  82  Pa.  72— §228,  n.  (23)  (e). 
Cauley  v.  Ry.,  95  Pa.  398— §43,  n.  (7)  (q),  (r). 
Cauley  v.  R.  R.,  98  Pa.  498— §228,  n.  (26)  (i). 
Cawley  v.  Bohan,  120  Pa.  295— §43,  n.  (9)   (a),  (c). 
Cayuga  B.  &  L.  Asso.  v.  MacMullen,  46  Pa.  Super.  94— §196,  n.   (3) 

(d). 

Central  Bank  v.  Early,  113  Pa.  477— §§88,  n,  (1)  (a) ;  161,  n.  (5)  (u). 
Central  R.  R.  v.  Green,  2  W.  N.  C.  590— §228,  n.  (20)    (e). 
Central  Trust  Co.  v.  White,  206  Pa.  611— §228,  n.  (20)   (u),  n.  (22) 

(h),  (s),  n.  (23)  (n). 
Centreville  School  District's  Appeal,  3  W.  N.  C.  75— §228,  n.   (12) 

(d),  n.  (28)   (a). 

Cessna's  Est.,  192  Pa.  14— §§183,  n.  (2)  (a) ;  185,  n.  (2)  (a). 
Chadwick  v.  Ober,  70  Pa.  264— §43,  n.  (3)    (x2). 
Chambers  v.  Chatley,  15  Pa.  Super.  540— §228,  n.  (18)   (u). 
Chambers  v.  Bedell,  2  W.  &  S.  225— §228,  n.  (20)  (m). 
Chambers  v.  Boro.,  140  Pa.  510— §187,  n.  (1)  (k),  n.  (4)   (a). 
Chambersburg  &  Bedford  Turnpike,  20  Pa.  Super.  123— §100,  n.  (2) 

(b). 

Chambers  v.  Davis,  3  Whar.  40— §228,  n.  (20)  (e2),  n.  (23)   (m). 
Chambers  v.  McLean,  23  Pa.  Super.  551 — §50,  n.  (2)   (a). 
Chandler  v.  Ins.  Co.,  88  Pa.  223— §228,  n.  (3)   (c). 
Chapman  Twp.  Overseers'  Ap.,  40  L.  I.  350— §85,  n.  (2)    (d). 
Charles  v.  Bishoff,  1  Sad.  260— §228,  n.  (4)   (e),  n.  (9)   (a). 
Chartiers  Gas  Co.  v.  Lynch,  118  Pa.  362— §228,  n.  (23)  (e). 
Chartiers  Ry.  v.  Hodgens,  77  Pa.  187— §50,  n.  (5)   (a). 
Chartiers  Twp.  Road,  1  Mona.  365— §228,  n.  (24)   (e3). 
Chase  v.  Hubbard,  99  Pa.  226— §228,  n.  (1)   (c),  n.  (20)   (m). 
Chase  v.  Life  &  Trust  Co.,  207  Pa.  24— §50,  n.  (4)   (b). 
Chase  v.  Miller,  41  Pa.  403— §§11,  n.  (3)  (a),  (b),  (e) ;  42,  n.  (1)  (a), 

(b),  (e) ;  43,  n.  (9)   (i) ;  48,  n.  (1)   (d) ;  n.  (2)   (b) ;  51,  n.  (3) ; 

n.  (4)  (a);  82,  n.  (4)  (a),  (d),  (t2). 

Cherry  Twp.  v.  County,  30  Pa.  Super.  502— §43,  n.  (3)  (i). 
Chester  v.  Mclntyre,  13  Pa.  Super.  545— §§51,  n.  (4)   (a) ;  228,  n.  (18) 

(s). 

Chester  Co.  Bank  v.  Thomas,  220  Pa.  360— §183,  n.  (4)   (b). 
Chester  County  Nomination,  213  Pa.  64— §§146,  n.   (1)    (i) ;  182,  n. 

(4)   (f). 
Chester  Trac.  Co.  v.  R.  R.,  180  Pa.  432— §11,  n.  (4)   (c). 

608 


TABLE  OF  CASES.  Che-Coh 


Chestnut  Hill  Road  v.  County,  228  Pa.  1— §§185,  n.  (4)   (a) ;  228,  n. 

(20)    (r)    (x). 
Chestnut  St.,  86  Pa.  88— §§48,  n.   (1)    (u2) ;  182,  n.  (3)    (c),  n.   (4) 

(k). 

Chew's  Case,  8  W.  &  S.  375— §228,  n.  (24)  (g3). 
Chew's  Ap.,  3  Gr.  294— §45,  n.  (3)    (m). 
Chew's  Ap.,  3  Gr.  308— §43,  n.  (6)    (z). 
Chew  v.  Phila.,  35  Pa.  Super.  66— §43,  n.  (3)  (h2). 
Childs  v.  Adams,  43  Pa.  Super.  239— §228,  n.  (18)  (m). 
Childs  v.  Digby,  24  Pa.  23— §228,  n.  (22)   (c2). 
Christner  v.  Johns,  171  Pa,  527— §§42,  n.  (3) ;  48,  n.  (4) ;  110,  D.  (4) 

(a);  182,  n.  (1)   (b). 

Christner  v.  John,  2  Pa.  Super.  78— §§147,  n.  (4)  (h) ;  228,  n.  (18)  (b). 
Christophers  v.  Selden,  28  Pa.  165— §§66,  n.  (2)   (c) ;  182,  n.  (2)   (v). 
Christy's  Ap.,  92  Pa.  157— §§228,  n.  (29)   (g) ;  229,  n.  (2)   (a). 
Christy's  Ap.,  110  Pa.  538— §45,  n.  (2)  (1),  n.  (3)  (s). 
Christy's  Lunacy,  2  Pa.  Super.  259— §§85,  n.'(l)  (a) ;  228,  n.  (18)  (p). 
Church's  Appeal,  103  Pa.  263— §§228,  n.  (6)   (p) ;  232,  n.  (3)  (a). 
Church  Co.  v.  Guernsey,  190  Pa.  284— §228,  n.  (18)   (m). 
Citizens'  B.  &  L.  Asso.  v.  Hoagland,  87  Pa.  326— §74,  n.  (1)  (i). 
Citizens'  Elec.  Co.  v.  Boom  Co.,  227  Pa.  449— §228,  n.  (18)  (m). 
Citizens'  Pass.  By.  Co.  v.  Ketcham,  122  Pa.  228— §228,  n.  (22)    (e), 

(x). 
Claflin  Co.  v.  Querns,  15  Pa.  Super.  464— §§187,  n.  (1)    (b) ;  228,  n. 

(20)   (a),  (j),  (r);n.  (23)   (h). 
Clarion,  etc.,  R.  R.  v.  Hamilton,  127  Pa.  1— §126,  n.  (3)  (i),  n.  (4)  (b), 

(d),  (n). 

Clark  v.  Clark,  180  Pa.  186— §141,  n.  (1)  (k). 
Clark  v.  Douglass,  62  Pa.  408— §146,  n.  (2)   (g). 
Clark  v.  Partridge,  2  Pa.  13— §228,  n.  (22)  (k2). 
Clark  v.  Patterson,  6  Bin.  128— §182,  n.  (2)    (t). 
Clark  v.  Smith,  25  Pa.  137— §185,  n.  (1)  (b). 

Clark  v.  Traction  Co.,  210  Pa.  636— §228,  n.  (19)  (i),  (p),  n.  (21)  (h). 
Clark  v.  Washington  Boro.,  145  Pa.  566— §36,  n.  (2)    (b). 
Clark  v.  Yeat,  4  Bin.  185— §182,  n.  (2)   (t). 
Clarkson  v.  Thorn,  2  Penny.  491— §228,  n.  (22)  (p). 
Clay  v.  Irvine,  4  W.  &  S.,  232— §228,  n.  (2)  (f). 
Clay  v.  R.  R.,  221  Pa.  439— §228,  n.  (22)   (b2). 
Clegg  v.  Steel  Co.,  34  Pa.  Super.  63— §228,  n.  (2)   (h),  n.  (29)  (h). 
Clever 's  Est.,  154  Pa.  481— §190,  n.  (13)   (a). 
Closser  v.  Township,  11  Pa.  Super.  112— §228,  n.  (25)    (m). 
Clymer  v.  Roberts,  220  Pa.  162— §44,  n.  (3). 
Clymer  v.  Thompson,  1  W.  N.  C.  261— §161,  n.  (5)  (k). 
Coates  v.  Roberts,  4  Rawle  100— §228,  n.  (22)  (a),  (t). 
Coates  v.  Wallace,  4  Pa.  Super.  253— §228,  n.  (26)   (a),  (b). 
Cobb  v.  Stephens,  2  Phila.  150— §185,  n.  (3)   (a). 
Coble  v.  Zook,  6  Pa.  Super.  597— §228,  n.  (23)   (h). 
Cochran  v.  Sanderson,  151  Pa.  591— §187,  n.  (2)   (a),  (i). 
Codding  v.  Wood,  112  Pa.  371— §228,  n.  (23)   (a). 
Cohen  v.  Transit  Co.,  228  Pa.  243— §228,  n.  (19)  (p) ;  n.  (21)  (n). 

609 
39 


Coh-Com.  TABLE  OF  CASES. 


Cohn  v.  Scheuer,  115  Pa.  178— §228,  n.  (24)  (u2). 

Colder  v.  Weaver,  7  Watts  466— §228,  n.  (23)  (m). 

Cole's  Case,  230  Pa.  162— §§182,  n.  (4)  (y2) ;  228,  n.  (25)  (e). 

Cole  v.  High,  173  Pa.  590— §228,  n.  (20)  (e). 

Coleman's  Est.,  200  Pa.  29— §228,  n.  (18)   (q). 

Collins  v.  Busch,  15  Pa.  Super.  255— §§43,  n.  (8)  (g) ;  125,  n.  (1)  (a) ; 

228,  n.  (6)  (1). 

Collins  v.  Houston,  138  Pa.  481— §228,  n.  (26)   (a),  (b). 
Collins  v.  Leafy,  23  W.  N.  C.  264— §228,  n.  (20)   (d). 
Collins  v.  Leafy,  124  Pa.  203— §228,  n.  (20)  (j),  n.  (24)  (b). 
Collins  v.  Rush,  7  S.  &  E.  147— §228.  n.  (20)   (s). 
Colonial  Trust  Co.  v.  Getz,  28  Pa.  Super.  619— §228,  n.  (23)    (k),  n. 

(25)   (t). 

Collum  v.  Andrews,  6  Watts  516— §228,  n.  (30)  (b). 
Columbia  Fire  Proofing  Co.  v.  Paper  Co.,  207  Pa.  232— §228,  n.  (18) 

(b);n.  (24)   (a2). 

Colwyn  v.  Tarbotton,  1  Pa.  Super.  179— §§108,  n.  (2) ;  110,  n.  (2)  (a). 
Com.  v.  Allegheny,  37  Pa.  237— §34,  n.  (1)    (a). 
Com.  v.  Arnold,  161  Pa.  320— §§147,  n.  (4)   (d) ;  148,  n.  (1)   (a),  (b) ; 

161,  n.   (8)    (a),   (b). 

Com.  v.  Baldwin,  1  Watts  54— §43,  n.  (2)   (c). 
Com.  v.  Balph,  111  Pa.  365— §§35,  n.  (1)   (a),  (b) ;  46,  n.  (5)   (a). 
Com.  v.  Barge,  11  Pa.  Super.  164— §§228,  n.  (6)   (s) ;  230.  n.  (1)   (g). 
Com.  v.  Earner,  199  Pa.  335— §187,  n.  (1)   (b). 
Com.  v.  Bartilson,  85  Pa,  482— §183,  n.  (4)  (f). 
Com.  v.  Barton,  20  Pa.  Super.  447— §155,  n.  (1)   (a). 
Com.  v.  Beale,  19  Pa.  Super.  434— §§46,  n.  (5)    (d) ;  183,  n.  (2)    (f). 
Com.  v.  Beaumont,  4  Rawle  366— §48,  n.  (1)   (f2) 
Com.  v.  Beech  Creek  R.  R.,  189  Pa.  203— §228,  n.  (18)  (i). 
Com.  v.  Best,  34  Pa.  Super.  219— §167,  n.  (1)   (h). 
Com.  v.  Betts,  76  Pa.  465— §182,  n.  (4)   (o). 
Com.  v.  Bird,  144  Pa.  194— §182,  n.  (4)   (J2). 
Com.  v.  Black,  201  Pa.  433— §9,  n.  (7). 
Com.  v.  Blatt,  165  Pa.  213— §43,  n.  (3)   (o2). 
Com.  v.  Boschino,  176  Pa.  103— §228,  n.  (19)   (a),  (c). 
Com.  v.  Bowman,  171  Pa.  448— §228,  n.  (20)   (a). 
Com.  v.  Bradney,  126  Pa.  199— §§46,  n.  (12)   (d) ;  151,  n.  (3) ;  183,  n. 

(3)   (e). 

Com.  v.  Brewing  Co.,  1  Pa.  Super.  627— §108,  n.  (2)   (a). 
Com.  v.  Bridge  Co.,  20  Pa.  185— §59,  n.  (4)    (a). 
Com.  v.  Brown,  23  Pa.  Super.  470— §228,  n.  (24)  (s). 
Com.  v.  Brownell,  35  Pa.  Super.  249— §182,  n.  (4)   (e),  (q). 
Com.  v.  Brubaker,  13  Pa.  Super.  14— §228,  n.  (19)   (a). 
Com.  v.  Bubnis,  197  Pa.  542— §§46,  n.  (10) ;  228,  n.  (20)  (a),  (j) ;  230, 

n.  (1)   (b). 
Com.  v.  Buccieri,  153  Pa.  570— §§46,  n.   (9)    (a) ;  228,  n.   (19)    (a) ; 

n.  (20)   (a);  n.  (22)   (n),  (c2) ;  n.  (24)   (z). 
Com.  v.  Bunnell,  20  Pa.  Super.  51— §187,  n.  (4)   (a). 
Com.  v.  Burkhart,  23  Pa.  521— §182,  n.  (2)   (s). 
Com.  v.  Burns,  14  Pa.  Super.  248— §190,  n.  (14)  (b). 

6lO 


TABLE  OF  CASES.  Com.  v.  B.-D. 


Com.  v.  Butler,  39  Pa.  Super.  125— §43,  n.  (2)   (f). 

Com.  v.  Butler,  19  Pa.  Super.  626— §§43,  n.  (2)   (k) ;  46,  n.  (2)   (d) ; 

108,  n.  (2)   (h). 

Com.  v.  Cairns,  46  Pa.  Super.  96— §228,  n.  (1)   (k). 
Com.  v.  Callahan,  153  Pa.  625— §43,  n.  (9)   (j). 
Com.  v.  Campbell,  31  Pa.  Super.  9— §185,  n.  (3)   (a) ;  n.  (4)  (a). 
Com.  v.  Capp,  48  Pa.  53— §46,  n.  (11)  (a),  (c) ;  n.  (12)  (b),  (c). 
Com.  v.  Cassell,  1  Pa.  Super.  476— §46,  n.  (12)   (b),  (d). 
Com.  v.  Cavett,  23  Pa.  Super.  57— §50,  n.  (2)   (a). 
Com.  v.  Chartiers  Ry.,  28  Pa.  Super.  173— §228,  n.  (9)   (g). 
Com.  v.  Charters,  20  Pa.  Super.  599— §228,  n.  (24)   (h.4). 
Com.  v.  Church,  17  Pa.  Super.  39— §228,  n.  (16)  (c). 
Com.  v.  Church,  1  Pa.  105— §§161,  n.  (4)   (a);  146,  n.  (2)    (a),  (e) ; 

228,  n.  (18)  (o). 

Com.  v.  Clark,  3  Pa.  Super.  141— §228,  n.  (22)   (a2),  (r2). 
Com.  v.  Clymer,  30  Pa.  Super.  61— §228,  n.  (21)  (a). 
Com.  v.  Coal  &  Iron  Co.,  145  Pa.  283— §35,  n.  (2)   (d). 
Com.  v.  Coble,  9  Pa.  Super.  215— §§151,  n.  (1)    (f ) ;  46,  n.  (12)   (a) ; 

228,  n.  (20)    (i). 

Com.  v.  Common  Pleas,  1  S.  &  R.  187— §38,  n.  (1)  (d),  (g. 
Com.  v.  Common  Pleas  Judges,  3  Bin.  273 — §43,  n.  (1)  (a). 
Com.  v.  Contner,  21  Pa.  266— §228,  n.  (24)   (J2). 
Com.  v.  Conway,  22  C.  C.  428— §167,  n.  (1)   (d). 
Com.  v.  Cooper,  27  Pa.  Super.  8— §228,  n.  (20)  (e). 
Com.  v.  Cornelly,  7  Pa.  Super.  77— §228,  n.  (21)   (a)- 
Com.  v.  County,  133  Pa.  180— §§48,  n.  (1)   (i2) ;  228,  n.  (24)   (b3). 
Com.  v.  County,  157  Pa.  531— §187,  n.  (1)  (j). 
Com.  v.  Craig,  19  Pa.  Super.  81— §§146,  n.  (2)   (h) ;  228,  n.  (18)   (o) ; 

n.  (25)  (a),  (b). 

Com.  v.  Cummings,  26  C.  C.  140— §§163,  n.  (3)  (g) ;  169,  n.  (2)  (a). 
Com.  v.  Cummings,  45  Pa.  Super.  211— §§187,  n.  (1)   (b) ;  197,  n.  (1) 

(f). 
Com.  v.  D'Angelo,  29  Pa.  Super.  378— §§186,  n.  (1)   (c) ;  228,  n.  (20) 

(a) 

Com.  v.  Danz,  211  Pa.  507— §228,  n.  (22)  (n). 
Com.  v.  Darr,  11  Pa.  Super.  74— §228,  n.  (18)  (p). 
Com.  v.  Davis,  109  Pa.  128— §§228,  n.  (24)   (b3),  (c3) ;  89,  n.  (2)   (b). 
Com.  v.  Davison,  11  Pa.  Super.  130— §46,  n.  (2)  (f). 
Com.  v.  Deacon,  8  S.  &  R.  72— §37,  n.  (1)  (a). 

Com.  v.  Dean,  21  Pa.  Super.  641— §§146,  n.  (2)   (c) ;  182,  n.  (4)   (q). 
Com.  v.  Dehle,  42  Pa.  Super.  300— §§185,  n.  (2)    (a) ;  n.  (3)   (a) ;  n. 

(5)  (a);  186,  n.  (1)  (a). 

Com.  v.  Deitrick,  218  Pa.  36— §228,  n.  (29)  (j). 

Com.  v.  Delameter,  145  Pa.  210— §§35,  n.  (1)  (b) ;  46,  n.  (5)  (a),  (b). 
Com.  v.  Delero,  218  Pa.  487— §228,  n.  (24)   (m). 
Com.  v.  Devine,  18  Pa.  Super.  431— §185,  n.  (1)   (b). 
Com.  v.  Dietrich,  7  Pa.  Super.  515— §228,  n.  (24)    (m). 
Com.  v.  Dilks,  45  Pa.  Super.  339— §182,  n.  (4)   (q). 
Com.  v.  District  Court,  5  W.  &  S.  272— §38,  n.  (1)   (e). 
Com.  v.  Dorman.  22  Pa.  Super.  20— §§146,  n.  (2)  (d) ;  161,  n.  (1)  (i) ; 

n.  (3)   (o). 

611 


Com.  v.  D.-H.  TABLE  OF  CASES. 


Com.  v.  Dorman,  (No.  2)  22  Pa.  Super.  20— §228,  n.  (16)   (b). 

Com.  v.  Doughty,  139  Pa.  383— §43,  n.  (7)  (u). 

Com.  v.  Doughty,  139  Pa.  383— §228,  n.  (19)  (a). 

Com.  v.  Duff,  7  Pa.  Super.  415— §§146,  n.  (2)  (a) ;  161,  n.  (3)  (h) ;  183, 

n.  (4)   (a);  228,  n.  (1)   (a);  n.  (11)   (c) ;  n.  (24)   (p2). 
Com.  v.  Dumbaula,  97  Pa.  293— §39,  n.  (1)  (a). 
Com.  v.  Dunham,  174  Pa.  436— §§108,  n.  (2)   (f) ;  121,  n.  (1)   (a). 
Com.  v.  Eckerd,  174  Pa.  137— §§186,  n.  (1)  (c),  (d) ;  228,  n.  (21)  (a). 
Com.  v.  Edgar,  44  Pa.  Super.  496— §182,  n.  (4)   (q). 
Com.  v.  Edmiston,  30  Pa.  Super.  54— §§183,  n.  (3)   (d) ;  228,  n.  (11) 

(c);n.  (24)   (r). 

Com.  v.  Eisenhower,  181  Pa.  470— §146,  n.  (2)   (d). 
Com.  v.  Everts,  19  Pa.  Super.  419— §82,  n.  (1)   (b). 
Com.  v.  Ewing,  176  Pa.  491— §179,  n.  (1)   (b). 
Com.  v.  Ezell,  212  Pa.  293— §§146,  n.  (2)   (a),  (d);  190,  n.  (12)   (g) ; 

228,  n.  (24)   (k). 

Com.  v.  Fencez,  226  Pa.  114—  §228,  n.  (20)  (j) ;  n.  (24)  (m). 
Com.  v.  Ferguson,  32  L.  I.  127— §151,  n.  (1)   (e) ;  n.  (2)   (b) ;  n.  (1) 

(h). 
Com.  v.  Fitzpatrick,  1  Pa.  Super.  518— §§155,  n.  (2)   (b) ;  228,  n.  (24) 

(P2). 

Com.  v.  Fleming,  157  Pa.  644— §§50,  n.  (2)  (a) ;  228,  n.  (11)  (a). 
Com.  v.  Fleming,  23  Pa.  Super.  404— §228,  n.  (27)    (e). 
Com.  v.  Fletcher,  208  Pa.  137— §46,  n.  (5)   (b). 
Com.  v.  Flomenhaft,  3  Pa.  Super.  566— §§92,  n.  (2)   (c),  (d) ;  228,  n. 

(24)  (q4). 

Com.  v.  Gabor,  209  Pa.  201— §46,  n.  (3)  (d). 
Com.  v.  Garrito,  222  Pa.  304— §§46,  n.  (10) ;  228,  n.  (24)   (p2) ;  230,  n. 

(1)  (b). 

Com.  v.  Gibbons,  9  Pa.  Super.  527— §§37,  n.  (2)  (d) ;  41,  n.  (1)  (b), 

(c);  102,  n.  (2)  (a);  108,  n.  (3)  (d). 
Com.  v.  Gibbons,  3  Pa.  Super.  408— §228,  n.  (12)  (c) ;  n.  (24)  (c2) ;  n. 

(28)  (a). 

Com.  v.  Gillespie,  146  Pa.  546— §48,  n.  (1)  (b2). 
Com.  v.  Gladfelter,  174  Pa.  438— §§108,  n.  (2)  (f) ;  121,  n.  (1)  (a). 
Com.  v.  Goldberg,  4  Pa.  Super.  142— §§186,  n.  (1)   (c) ;  228,  n.  (20) 

(a),  (y2);n.  (21)   (h). 

Com.  v.  Gouger,  21  Pa.  Super.  217— §46,  n.  (2)   (c). 
Com.  v.  Gould,  43  Pa.  Super.  317— §50,  n.  (4)   (a). 
Com.  v.  Greason,  208  Pa.  126— §226,  n.  (2). 
Com.  v.  Green,  185  Pa.  641— §§35,  n.  (1)   (b),  (f) ;  37,  n.  (1)   (c) ;  n. 

(2)  (c),   (e);  46,  n.   (5)    (a). 

Com.  v.  Haas,  57  Pa.  443— §46,  n.  (2)   (b) ;  n.  (12)   (c). 

Com.  v.  Haffey,  6  Pa.  348— §228,  n.  (3)   (f) ;  n.  (4)   (o). 

Com.  v.  Hall,  23  Pa.  Super.  104— §§228,  n.  (24)   (r) ;  183,  n.  (3)   (d). 

Com.  v.  Hanley,  15  Pa.  Super.  271— §228,  n.  (18)   (e). 

Com.  v.  Hare,  36  Pa.  Super.  125— §§182,  n.  (4)   (t)   (k2) ;  230,  n.  (1) 

(f). 
Com.  v.  Harris,  168  Pa.  619— §228,  n.  (23)   (d). 

612 


TABLE  OF  CASES.  Com.  v.  H.-K. 


Com.  v.  Harrold,  204  Pa.  154— §§48,  n.  (1)   (£2) ;  75,  n.  (2)   (a) ;  182, 

n.  (4)   (m2). 

Com.  v.  Hart,  12  Pa.  Super.  605— §182,  n.  (4)  (q). 
Com.  v.  Hartranft,  77  Pa.  154— §38,  n.  (1)  (a). 
Com.  v.  Harvey,  36  Pa.  Super.  235— §92,  n.  (2)  (c),  (d). 
Com.  v.  Harvey,  51  P.  L.  J.  380— §§163,  n.  (3)   (h) ;  n.  (4)   (a) ;  169, 

n.  (2)   (d). 

Com.  v.  Harvey,  222  Pa.  214— §228,  n.  (24)   (q4). 
Com.  v.  Hasse,  21  Pa.  Super.  291— §190,  n.  (12)   (a),  (b),  (g). 
Com.  v.  Hazlett,  14  Pa.  Super.  352— §§187,  n.   (1)    (b) ;  n.   (4)    (f ) ; 

228,  n.  (20)   (k). 
Com.  v.  Hazlett,  16  Pa.  Super.  534— §§46,  n.  (11)    (c) ;  228,  n.  (24) 

(m). 
Com.  v.  Heidler,  191  Pa.  375— §§186,  n.  (1)  (a) ;  187,  n.  (4)   (f ) ;  228, 

n.  (24)  (p2). 

Com.  v.  Heikes,  26  Pa.  513— §43,  n.  (9)   (r) ;  n.  (12)  (c). 
Com.  v.  Hill,  185  Pa.  385— §§167,  n.  (1)    (f),  (g) ;  168,  n.  (1)    (b) ; 

179,  n.  (2)   (a). 

Com.  v.  Hine,  213  Pa.  97— §226,  n.  (1). 
Com.  v.  Houghton,  22  Pa.  Super.  138— §186,  n.  (1)  (a). 
Com.  v.  Houghton,  22  Pa.  Super.  52— §228,  n.  (9)  (e) ;  n.  (24)  (p2). 
Com.  v.  Houghton,  31  Pa.  Super.  528— §228,  n.  (24)   (p2). 
Com.  v.  House,  6  Pa.  Super.  92— §228,  n.  (20)   (c2). 
Com.  v.  House,  3  Pa.  Super.  304— §187,  n.  (1)   (b). 
Com.  v.  Howard,  149  Pa.  302— §43,  n.  (3)  (z2). 
Com.  v.  Hulings,  129  Pa.  317— §228,  n.  (18)    (t). 
Com.  v.  Hultz,  6  Pa.  469— §38,  n.  (1)   (c). 
Com.  v.  Button,  32  Pa.  Super.  66— §141,  n.  (1)   (e). 
Com.  v.  Hyde,  39  Pa.  Super.  261— §187,  n.  (1)   (k). 
Com.  v.  Ickhoff,  33  Pa.  80— §35,  n.  (1)   (a). 
Com.  v.  Isaacman,  33  Pa.  Super.  384— §182,  n.  (4)   (q). 
Com.  v.  Jacoby,  1  Pitts.  481— §151,  n.  (2)   (d). 
Com.  v.  James,  142  Pa.  32— §§48,  n.  (1)   (e) ;  182,  n.  (4)   (q). 
Com.  v.  Johnson,  5  Pa.  Super.  585— §§198,  n.  (3)  (a) ;  187,  n.  (2)   (b). 
Com.  v.  Johnston,  44  Pa.  Super.  218 — §147,  n.  (4)   (j). 
Com.  v.  Jones,  90  Pa.  431— §48,  n.  (1)   (e). 
Com.  v.  Jongrass,  181  Pa.  172— §228,  n.  (24)  (s2). 
Com.  v.  Judges,  3  Bin.  273— §182,  n.  (2)   (b). 

Com.  v.  Justice,  34  Pa.  165— §§48,  n.  (1)  (o2) ;  228,  n.  (24)  (r4),  (o3). 
Com.  v.  Kaiser,  184  Pa.  493— §228,  n.  (20)  (a). 
Com.  v.  Kay,  14  Pa.  Super.  376— §§183,  n.  (2)   (m) ;  228,  n.  (20)   (r) ; 

n.  (21)  (h),  (k);n.  (25)  (b). 

Com.  v.  Keene,  7  Pa,  Super.  293— §228,  n.  (21)    (a). 
Com.  v.  Keeper  of  Jail,  26  Pa.  Super.  191— §§37,  n.  (1)   (b) ;  n.  (2) 

(d);41,  n.  (1)   (d). 
Com.  v.  Keeper  of  Workhouse,  6  Pa.  Super.  420— §§337,  n.  (2)    (d) ; 

41,  n.  (1)   (a). 

Com.  v.  Keller,  191  Pa.  122— §228,  n.  (19)  (a). 
Com.  v.  Kloss,  38  Pa.  Super.  307— §183,  n.  (2)   (p). 
Com.  v.  Ketner,  92  Pa.  372— §37,  n.  (1)  (d). 

613 


Com.  v.  K.-M.  TABLE  OF  CASES. 


Com.  v.  Klein,  42  Pa.  Super.  66— §228,  n.  (25)   (e). 

Com.  v.  Kreimbrook,  23  Pa.  Super.  511— §196  n.  (1)  (a). 

Com.  v.  Kreinbrook,  23  Pa,  Super.  511— §198,  n.  (1)   (d). 

Com.  v.  Layton,  45  Pa.  Super.  582— §182,  n.  (4)  (a),  (z2). 

Com.  v.  Lee,  226  Pa.  283— §228,  n.  (20)   (x). 

Com.  v.  Lenousky,  206  Pa.  277— §228,  n.  (25)    (a). 

Com.  v.  Light,  195  Pa.  220— §228,  n.  (20)   (d). 

Com.  v.  Light,  10  Pa.  Super.  66— §185,  n.  (2)  (a) ;  n.  (5)   (a). 

Com.  v.  Loesch,  153  Pa.  502— §228,  n.  (20)  (o2). 

Com.  v.  Little,  12  Pa.  Super.  636— §228,  n.  (26)    (b). 

Com.  v.  Lombardi,  221  Pa.  31— §228,  n.  (24)  (p2). 

Com.  v.  Luckey,  36  Pa.  Super.  441— §43,  n.  (3)   (1). 

Com.  v.  Luton,  12  Luz.  L.  Reg.  63— §163,  n.  (3)  (e). 

Com.  v.  Mackey,  34  Pa.  Super.  1— §§183,  n.  (2)  (a) ;  185,  n.  (1)  (s). 

Com.  v.  Magee,  33  Pa.  Super.  257— §§43,  n.  (3)  (j) ;  161,  n.  (3)  (j). 

Com.  v.  Magee,  213  Pa.  443— §117,  n.  (3)   (d). 

Com.  v.  Martin,  170  Pa.  118— §77,  n.  (1)   (b). 

Com.  v.  Masonic  Home,  188  Pa.  21— §77,  n.  (6)  (d). 

Com.  v.  Mathues,  210  Pa.  372— §§2,  n.  (2) ;  4,  n.  (2) ;  6,  n.  (2). 

Com.  v.  Maurer,  42  Pa.  Super.  170— §§42,  n.  (3) ;  182,  n.  (4)  (x2). 

Com.  v.  Maxwell,  27  Pa.  444— §4,  n.  (1). 

Com.  v.  Maxwell,  34  Pa.  Super.  636— §43,  n.  (3)  (e3). 

Com.  v.  McAleese,  10  Pa.  Super.  286— §§41,  n.  (1)   (e) ;  110,  n.  (3) ; 

117  n.  (3)   (f). 

Com.  v.  McAllister,  1  Watts.  307— §43,  n.  (10)   (f). 
Com.  v.  McCarter,  98  Pa.  607— §§89,  n.  (2)   (b) ;  228,  n.  (24)  (c3). 
Com.  v.  McClellan,  42  Pa.  Super.  504— §228,  n.  (16)   (f). 
Com.  v.  McDougall,  203  Pa.  291— §182,  n.  (4)   (k2). 
Com.  v.  McKwayne,  221  Pa.  449— §187,  n.  (1)   (b). 
Com.  v.  McManiman,  27  Pa.  Super.  304— §228,  n.  (9)  (f). 
Com.  v.  McManus,  143  Pa.  64— §228,  n.  (20)   (a) ;  n.  (22)   (a). 
Com.  v.  McNaught,  28  Pa.  Super.  269— §163,  n.  (3)  (f). 
Com.  v.  McNaughter,  131  Pa.  55— §46,  n.  (12)  (d). 
Com.  v.  McWilliams,  11  Pa.  61— §228,  n.  (13)  (c) ;  n.  (27)  (a). 
Com.  v.  Meads,  29  Pa,  Super.  321— §228,  n.  (21)  (h). 
Com.  v.  Meeser,  19  Pa.  Super.  1— §182,  n.  (4)  (j2). 
Com.  v.  Mellet,  196  Pa.  243— §74,  n.  (1)   (s). 
Com.  v.  Mika,  171  Pa.  273— §228,  n.  (20)  (a). 
Com.  v.  Miller,  31  Pa.  Super.  317— §187,  n.  (1)   (a). 
Com.  v.  Miller  31  Pa.  Super  309— §190  n.  (12)   (a). 
Com.  v.  Mills,  26  Pa.  Super.  549— §182,  n.  (4)  (q). 
Com.  v.  Mitchell  80  Pa.  57— §§43  n.  (1)   (g) ;  n.  (3)   (t2) :  98  n.  (1) 

(a);  126,  n.  (5)   (d) ;  228,  n.  (18)   (t). 
Com.  v.  Mitchell,  33  Pa.  Super.  345— §228,  n.  (11)   (e). 
Com.  v.  Mitchell,  32  Pa.  Super.  345— §228,  n.  (24)   (e4). 
Com.  v.  Mock,  23  Pa.  Super.  51— §§148,  n.  (2)   (b) ;  183,  n.  (3)   (e) : 

n.  (4)  (a). 

Com.  v.  Moore,  199  Pa.  160— §§43,  n.  (3)  (m2) ;  89,  n.  (2)  (c). 
Com.  v.  Moore,  99  Pa.  570— §230,  n.  (1)  (d). 

614 


TABLE  OF  CASES.  Com.  v.  M.-R. 


Com.  v.  Morrison,  193  Pa.  613— §§155,  n.  (2)    (c) ;  228,  n.  (20)    (a) ; 

46,  n.  (10);  230,  n.  (1)  (b). 

Com.  v.  Mudgett,  174  Pa.  211— §228,  n.  (11)   (b). 
Com.  v.  Nagle,  31  Pa.  Super.  175— §43,  n.  (3)   (p2). 
Com.  v.  Nathans,  5  Pa.  124— §§48,  n.  (1)   (j) ;  n.  (1)   (k) ;  n.  (2)   (a) ; 

182,  n.  (4)  (c). 

Com.  v.  Newton,  2  Phila.  262— §182,  n.  (4)   (r2). 
Com.  v.  Nicely,  130  Pa.  261— §§146,  n.  (2)  (d) ;  228,  n.  (16)  (a). 
Com.  v.  Oblender,  135  Pa.  536— §§92,  n.  (2)   (d) ;  228,  n.  (24)   (q4).; 

182,  n.  (4)  (J2). 

Com.  v.  O'Donnell,  188  Pa.  23— §§74,  n.  (1)  (k) ;  n.  (3) ;  89,  n.  (2)  (a). 
Com.  v.  O'Donnell,  7  Pa.  Super.  49— §§102,  n.  (1) ;  n.  (2)  (c) ;  108,  n. 

(1) ;  n.  (3)  (a) ;  89,  n.  (3)  (a) ;  104,  n.  (2)  (b). 
Com.  v.  Ontario  Ry.,  188  Pa.  205— §228,  n.  (18)  (j). 
Com.  v.  Order  of  Solon,  166  Pa.  33— §89,  n.  (1)  (a). 
Com.  v.  Orr,  138  Pa.  276— §§185,  n.  (1)  (a) ;  186,  n.  (1)  (a),  (e) ;  228, 

n.  (21),  (a). 

Com.  v.  Owen,  32  Pa.  Super.  420— §183,  n.  (5)   (b) ;  n.  (6)  (a). 
Com.  v.  Pacito,  229  Pa.  328— §228,  n.  (19)  (a). 
Com.  v.  Peach,  170  Pa.  173— §228,  n.  (19)  (a). 

Com.  v.  Pearl,  29  Pa.  Super.  307— §§228,  n.  (20)   (h) ;  187,  n.  (2)  (a). 
Com.  v.  Pennock,  3  S.  &  R.  199— §228,  n.  (27)   (a). 
Com.  v.  Penrod,  1  W.  N.  C.  65—  §46,  n.  (1). 
Com.  v.  Penrose,  27  Pa.  Super.  101— §§186,  n.  (1)    (c) ;  228,  n.  (19) 

(h);  n.  (20)   (a);n.  (21)   (c). 
Com.  v.  Perkins,  124  Pa.  36— §37,  n.  (1)  (e). 
Com.  v.  Phila.,  157  Pa.  531— §228,  n.  (4)  (h) ;  n.  (18)  (y). 
Com.  v.  Phila.,  180  Pa.  12— §77,  n.  (6)  (c). 

Com.  v.  Pilnik,  29  Pa.  Super.  285— §§43  n.  (7)  (r) ;  190,  n.  (3)  (a). 
Com.  v.  Pitts.  Councils,  34  Pa.  496— §34,  n.  (1). 
Com.  v.  Polichinus,  229  Pa.  311— §228,  n.  (16)  (f). 
Com.  v.  Powell,  23  Pa.  Super.  370— §§183,  n.  (2)  (f) ;  187,  n.  (1)  (b), 

(g);n.  (4)  (f);228,n.  (24)  (1). 
Com.  v.  Preston,  188  Pa.  429— §228,  n.  (15)  (a). 
Com.  v.  Price,  15  Pa.  Super.  342— §§228,  n.  (1)   (a) ;  n.  (14)   (a) ;  n. 

(15)  (a);  183,  n.  (4)  (b). 

Com.  v.  Price,  45  Pa.  Super.  643— §182,  n.  (4)   (z2). 
Com.  v.  Quinn,  42  Pa.  Super.  490— §190,  n.  (12)  (b). 
Com.  v.  R.  R.,  132  Pa.  591— §228,  n.  (23)  (c). 
Com.  v.  R.  R.,  23  Pa.  Super.  235— §228,  n.  (25)  (  a). 
Com.  v.  R.  R.,  28  Pa.  Super.  173— §228,  n.  (24)   (r2),  (s2). 
Com.  v.  Ramsay,  166  Pa.  642— §182,  n.  (4)   (d). 
Com.  v.  Razmus,  210  Pa.  609— §228,  n.  (20)   (a) ;  (r),  (k). 
Com.  v.  Real  Est.  Trust  Co.,  22  Pa.  Super.  235— §43,  n.  (6)  (h2). 
Com.  v.  Reeder,  171  Pa.  505— §§1,  n.  (2) ;  12,  n.  (1). 
Com.  v.  Renzo,  216  Pa.  147— §228,  n.  (24)  (m). 
Com.  t.  Rhoads,  9  Pa.  488— §§92,  n.  (2)  (b) ;  182,  n.  (2)  (p). 
Com.  v.  Ribert,  144  Pa.  413— §161,  n.  (6)  (h). 
Com.  v.  Roddy,  184  Pa.  274— §228,  n.   (24)    (p2). 
Com.  v.  Rogers,  15  Pa.  Super.  461— §§108,  n.  (2)  (a) ;  182,  n.  (4)   (q). 

615 


Com.  v.  R.-S.  TABLE  OF  CASES. 


Com.  v.  Ronemus,  205  Pa.  420— §§35,  n.  (1)  (c),  (d) ;  46,  n.  (5)  (a). 

Com.  v.  Roth,  8  Pa.  Super.  220— §46,  n.  (3)   (a). 

Com.  v.  Ruddle,  142  Pa.  144— §228,  n.  (23)  (e). 

Com.  v.  Ruth,  104  Pa.  294— §46,  n.  (1). 

Com.  v.  Rutherford,  8  Dist.  349— §9,  n.  (7). 

Com.  v.  Sarnes,  44  Pa.  Super.  441— §183,  n.  (4)   (b). 

Com.  v.  Sayars,  21  Pa.  Super.  75— §228,  n.  (20)  (h). 

Com.  v.  Sheuer,  115  Pa.  178— §228,  n.  (24)   (f). 

Com.  v.  Schoen,  25  Pa.  Super.  211— §§183,  n.  (4)    (b) ;  228,  n.  (15) 

(a);n.  (21)   (a). 

Com.  v.  Scouton,  20  Pa.  Super.  503— §228,  n.  (24)   (m). 
Com.  v.  Seeehrist,  27  Pa.  Super.  423— §46,  n.  (5)   (b). 
Com.  v.  Shick,  61  Pa.  495— §92,  n.  (3). 

Com.  v.  Shafer,  32  C.  C.  499;  15  Dist.  689,  1906— §38,  n.  (1)  (h). 
Com.  v.  Shirley,  152  Pa.  170— §228,  n.  (2)   (h). 
Com.  v.  Shivers,  15  Pa.  Super.  579— §46,  n.  (3)  (b). 
Com.  v.  Shoener,  25  Pa.  Super.  526— §§183,  n.  (2)    (b) ;  186,  n.  (1) 

(b);230,  n.  (1)   (g) ;  228,  n.  (24)   (1). 
Com.  v.  Shortall,  206  Pa.  165— §§11,  n.  (3)  (c) ;  37,  n.  (1)  (f ) ;  n.  (2) 

(b);42,  n.  (1)   (e). 

Com.  v.  Simon,  44  Pa.  Super.  538— §186,  n.  (1)  (a). 
Com.  v.  Singer,  31  Pa.  Super,  597— §228  n.  (13)  (f). 
Com.  v.  Smith,  2  Pa.  Super.  474— §§146,  n.  (2)  (d) ;  183,  n.  (4)  (a) ; 

187,  n.  (1)  (b) ;  228,  n.  (16)  (b) ;  n.  (25)  (v). 
Com.  v.  Smith,  200  Pa.  363— §182,  n.  (4)   (q). 
Com.  v.  Smith,  185  Pa.  553— §§35,  n.  (1)  (b),  (e) ;  46,  n.  (5)  (a). 
Com.  v.  Smith,  18  Dist.  1003— §240,  n.  (1)   (b). 
Com.  v.  Sober,  15  Pa.  Super.  520— §46,  n.  (11)  (c) ;  n.  (12)  (c). 
Com.  v.  Sober,  22  Pa.  Super.  22— §§190,  n.   (12)    (a) ;  n.  (13)    (h) ; 

228,  n.  (17)   (e). 
Com.  v.  Spencer,  6  Pa.  Super.  256— §§161,  n.  (3)  (h) ;  n.  (6)  (a) ;  187, 

n.   (1)    (b);  n.  (4)    (f). 

Com.  v.  Spencer,  9  Kulp  159— §179,  n.  (2)  (b). 
Com.  v.  Stambaugh,  22  Pa.  Super.  386— §185,  n.  (1)  (m). 
Com.  v.  Stanley,  19  Pa.  Super.  58— §186,  n.  (1)   (c). 
Com.  v.  Stanley,  39  Pa.  Super.  402— §228,  n.  (1)  (c) ;  n.  (17)  (d). 
Com.  v.  Steimling,  156  Pa.  400— §§46,  n.  (12)   (a) ;  230,  n.  (1)  (e). 
Com.  v.  Stephens,  9  Pa.  Super.  218— §43,  n.  (3)  (a2). 
Com.  v.  Stillwagon,  13  Pa.  Super.  547— §§151,  n.  (1)   (f ) ;  46.  n.  (12) 

(a);228,n.  (20)  (i). 
Com.  v.  Stokely,  4  C.  C.  334— §9,  n.  (7). 
Com.  v.  Stovas,  45  Pa.  Super.  43— §186,  n.  (1)  (a). 
Com.  v.  Strail,  220  Pa.  483— §196,  n.  (3)   (a). 
Com.  v.  Strickland,  27  Pa.  Super.  309— §§146,  n.  (2)   (c) ;  182,  n.  (4) 

(k2). 

Com.  v.  Striepeke,  32  Pa.  Super.  82— §228,  n.  (24)  (q2). 
Com.  v.  Sunderlin,  31  Pa.  Super.  349— §187,  n.  (1)   (a) ;  n.  (2)  (a). 
Com.  v.  Supt.  County  Prison,  97  Pa.  211— §37.  n.  (2)   (d). 
Com.  v.  Supt.  County  Prison.  220  Pa.  401— §§42,  n.  (3) ;  182.  n.  (4) 

(t),   (k2). 

616 


TABLE  OF  CASES.  Com.  v.  S.-Z. 


Com.  v.  Supt.  County  Prison,  38  Pa.  Super.  594— §230,  n.  (1)   (f). 

Com.  v.  Swallow,  8  Pa.  Super.  539 — §228,  n.  (22)   (a2). 

Com.  v.  Swayne,  1  Pa.  Super.  547— §§185,  n.  (1)  (b) :  186,  n.  (1)   (c) ; 

228,  n.  (20)    (d) ;  n.   (21)    (h)! 
Com.  v.  Switzer,  134  Pa.  383— §228,  n.  (20)  (u2). 
Com.  v.  Titman,  148  Pa.  168—  §§74,  n.  (1)  (s) ;  228,  n.  (24)  (z3). 
Com.  v.  Tragic,  4  Pa.  Super.  159— §§48,  n.  (1)  (1) ;  n.  (2)  (a) ;  108,  n. 

(2)  (a);182,n.  (1)  (b) ;  n.  (4)  (q). 
Com.  v.  Trust  Co.,  22  Pa.  Super.  235— §92,  n.  (3). 
Com.  v.  Union  Surety  Co.,  37  Pa.  Super.  167— §43,  n.  (7)   (e). 
Com.  v.  Van  Horn,  188  Pa.  143— §§151,  n.  (1)   (h) ;  155,  n.  (2)   (b) ; 

161,  n.  (6)   (a),  (e).;  228,  n.  (21)   (a). 
Com.  v.  Vanchaski,  42  Pa.  Super.  294— §228,  n.  (22)   (d2). 
Com.  v.  Volquarts,  36  Pa.  Super.  190— §§185,  n.  (3)   (a) ;  186,  n.  (1) 

(a);  187,  n.  (1)   (b). 

Com.  v.  Wallace,  7  Pa.  Super.  405— §§46,  n.  (12)  (a) ;  151,  n.  (1)  (g) . 
Com.  v.  Wallace,  114  Pa.  405— §46,  n.  11  (a),  (c) ;  n.  (12)   (b),  (c), 

(d),  (e). 

Com.  v.  Walter,  86  Pa.  15— §228,  n.  (31)   (a).  , 

Com.  v.  Ware,  37  Pa.  465— §228,  n.  (11)   (c). 
Com.  v.  Warner,  13  Pa.  Super.  461— §§186,  n.  (1)    (c) ;  228,  n.  (21) 

(a),  (b). 

Com.  v.  Washington,  202  Pa.  148— §228,  n.  (20)  (j). 
Com.  v.  Wasson,  42  Pa.  Super.  38— §§185,  n.  (1)  (c) ;  228,  n.  (19)  (c) ; 

n.  (20)    (r). 

Com.  v.  Weber,  167  Pa.  153— §228,  n.  (16)   (b). 
Com.  v.  Werntz,  161  Pa.  591— §§183,  n.  (2)   (a) ;  187,  n.  (1)   (b) ;  190, 

n.  (12)   (a). 
Com.  v.  Wertheimer,  23  Pa.  Super.  192— §§185,  n.  (1)  (c) ;  228,  n.  (19) 

(h);n.  (21)   (c). 
Com.  v.  Wilkinsburg  Boro.,  37  Pa.  Super.  160— §§183,  n.  (4)  (a) ;  228, 

n.  (19)   (a). 
Com.  v.  Williams,  41  Pa.  Super.  326— §§190,  n.  (13)  (v) ;  228,  n.  (24) 

0>2). 

Com.  v.  Wilson,  186  Pa.  1— §§161,  n.  (6)  (a) ;  187,  n.  (4)  (a). 
Com.  v.  Windish,  176  Pa.  167— §§146,  n.  (2)   (d) ;  228,  n.  (16)   (b). 
Com.  v.  Winkelman,  12  Pa.  Super.  497— §228,  n.  (19)  (a),  (f) ;  n.  (20) 

(a),  (b);n.  (21)   (a),  (b),  (h). 
Com.  v.  Yeisley,  6  Pa.  Super.  273— §228,  n.  (4)   (i). 
Com.  v.  Yocum,  37  Pa.  Super.  237— §§183,  n.  (2)  (f ) ;  185,  n.  (3)  (a) ; 

187,  n.  (1)  (b);198,  n.  (2). 
Com.  v.  Zappe,  153  Pa.  498— §§183,  n.  (4)   (e) ;  185  n.  (1)   (i) ;  186, 

n.  (1)  (c) ;  228,  n.  (19)  (a) ;  n.  (20)  (a),  (r) ;  n.  (22)  (u2). 
Com.  v.  Zillafrow,  207  Pa.  274— §228,  n.  (13)  (i). 
Com.  v.  Zuern,  16  Pa.  Super.  588— §228,  n.  (21)  (a). 
Commonwealth's  Ap.,  128  Pa.  603— §57,  n.  (1). 
Commonwealth's  Ap.,  5  Pa.  267— §222,  n.  (1)   (a). 
Commonwealth  Title  Co.  v.  Gray,  150  Pa.  255— §§187,  n.  (1)  (b) ;  228, 

n.  (26)  (a),  (b). 
Compher  v.  Anawalt,  2  Watts,  490— §228,  n.  (24)  (z3). 

617 


Com-Cra  TABLE  OF  CASES. 


Cornpton's  Est.,  30  Pa.  Super.  605— §229,  n.  (2)   (c). 

Connell  v.  O'Neil,  154  Pa.  582— §§146,  n.  (2)    (b) ;  147,  n.  (4)    (d) ; 

148,  n.  (1)  (a);161,n.  (1)  (c). 
Connellsville  v.  Hogg,  156  Pa.  326— §228,  n.  (4)   (d) ;  n.  (8)  (m) ;  239, 

n.  (3)   (a). 

Connelly  v.  Walker,  45  Pa.  449— §228,  n.  (20)  (c),  (h). 
Connor  v.  Schildet,  16  Pa.  Super.  88— §228,  n.  (13)   (q). 
Connor  v.  Traction  Co.,  173  Pa.  602—228,  n.  (19)   (a). 
Conrad  v.  Conrad,  36  Pa.  Super.  154— §228,  n.  (18)   (g) . 
Conroe  v.  Conroe,  47  Pa.  198— §228,  n.  (24)   (f). 

Conrow  v.  Schloss,  55  Pa.  28— §§141,  n.  (1)   (c) ;  161,  n.  (8)   (a),  (c). 
Constine's  Ap.,  1  Gr.  242— §43,  n.  (6)  (t). 

Continental  Trust  Co.  v.  Devlin,  209  Pa.  380— §228,  n.  (23)   (c). 
Convers  v.  Vanatta,  24  Pa.  257— §228,  n.  (15)  (a). 
Cook  v.  Motor  Co.,  225  Pa.  91— §228,  n.  (24)  (m),  (n2). 
Cook  v.  Mackrell,  70  Pa.  12— §228,  n.  (23)   (e). 
Cooke  v.  Reinhart,  1  Rawle  317— §§182,  n.  (2)   (t) ;  233,  n.  (1)   (b) ; 

243,  n.  (1)   (h). 

Cooke  v.  Telegraph  Co.,  31  Pa.  Super.  431— §11,  n.  (4)   (c). 
Cooley  v.  Traction  Co.,  189  Pa.  563— §228,  n.  (19)  (1) ;  n.  (20)  (d). 
Cooper  v.  Altemus,  62  Pa.  486— §228,  n.  (19)  (a) ;  n.  (20)   (w2). 
Cooper  v.  Const.  Co.,  231  Pa.  557— §185,  n.  (1)  (t) ;  n.  (2)  (c). 
Cope  v.  Kidney,  115  Pa,  228— §228,  n.  (15)  (a). 
Corkery  v.  O'Neill,  9  Pa.  Super.  335— §§183,  n.  (4)   (a) ;  228,  n.  (24) 

(a2). 

Cornish  v.  Hooker,  141  Pa.  138— §187,  n.  (1)  (b). 
Cosgrove  v.  Cummings,  190  Pa.  525— §228,  n.  (22)   (a). 
Cote  v.  Schoen,  1  Pa.  Super.  583— §228,  n.  (20)  (p2). 
Coughanour  v.  Bloodgood,  27  Pa.  285— §243,  n.  (1)   (a). 
Cougle  v.  McKee,  151  Pa.  602— §228,  n.  (23)  (e),  (h). 
Coulston's  Est.,  161  Pa.  151— §228,  n.  (18)   (1). 
Countryman's  Est.,  151  Pa.  577— §228,  n.  (18)  (12) ;  n.  (25)  (o). 
Covanhovan  v.  Hart,  21  Pa.  495— §228,  n.  (24)   (a2),  (f2). 
Cover  v.  Manaway,  115  Pa.  338— §228,  n.  (23)   (h). 
Coverdill  v.  Heath,  12  Pa.  Super.  15— §§183,  n.  (2)   (c) ;  187,  n.  (1) 

(b);n.  (2)   (c). 

Covert  v.  Irwin,  3  S.  &  R.  283— §228,  n.  (22)  (e2). 
Cowan's  Est.,  184  Pa.  339— §228,  n.  (18)   (h). 
Cowen  v.  Plate  Glass  Co.,  188  Pa.  542— §225,  n.  (1)   (a). 
Cox's  Admr.  v.  Henry,  36  Pa.  445— §§141,  n.  (1)   (i) ;  244,  n.  (1)  (b). 
Cox  v.  Highley,  100  Pa.  249— §228,  n.  (20)   (d2). 
Cox  v.  Wilson,  25  Pa.  Super.  635— §§186,  n.  (1)  (c) :  228,  n.  (20)  (a), 

(j);n.  (22)  (z) ;  n.  (25)  (b). 

Cox  v.  Burdett,  23  Pa.  Super.  346— §228,  n.  (4)   (c),  (g) 
Coxe's  Ap.,  120  Pa.  98— §228,  n.  (18)   (q). 
Coyle  v.  Com.,  100  Pa.  573— §228,  n.  (20)  (v2). 
Coyle  v.  R.  R.,  18  Pa.  Super.  235— §228,  n.  (20)  (e) 
Craig's  Ap.,  38  Pa.  330— §43,  n.  (6)   (y),  (n2). 
Craig  v.  Shippensburg,  11  Pa,  Super.  490— §228,  n.  (20)   (a) 
Craig  v.  Boro.,  11  Pa.  Super.  490— §183,  n.  (4)  (e). 

618 


TABLE  OF  CASES.  Cra-Dal 


Crail  v.  Crail,  6  Pa.  480— §228,  n.  (19)   (a). 

Cramer's  License,  23  Pa.  Super.  596— §228,  n.  (24)   (r2). 

Crane  Marks  Co.  v.  Gordon,  33  Pa.  Super.  315— §§155,  n.  (1)  (a),  (g) ; 

190,  n.  (12)   (a). 

Crawford  v.  City,  23  W.  N.  C.  141— §190,  n.  (12)  (a). 
Crawford  v.  McKinney,  165  Pa.  605— §§82,  n.   (1)    (a) ;  185,  n.  (3) 

(a);186,n.  (1)  (a) ;  228,  n.  (24)   (12). 

Crawford  v.  Pyle,  190  Pa.  263— §288,  n.  (15)   (a),  (g) ;  n.  (20)   (r). 
Crawford  v.  Shriver,  139  Pa.  239— §43,  n.  (6)  (n). 
Crawford  v.  Wittish,  4  Pa.  Super.  585— §§183,  n.  (4)  (e) ;  228,  n.  (19) 

(a). 
Creachen  v.  Carpet  Co.,  214  Pa.  15— §§187,  n.  (1)  (b) ;  n.  (2)  (a) ;  n. 

(4)   (f);  196  n.  (3)   (a)  j  225,  n.  (1)  (a) ;  228,  n.  (22)   (a). 
Crescent  Twp.  Road,  18  Pa.  Super.  160— §126,  n.  (3  (j). 
Cridland  v.  Crow,  221  Pa.  618— §228,  n.  (20)   (x2). 
Criland  v.  Stevens,  9  Pa.  Super.  41— §228,  n.  (19)    (a). 
Crissey  v.  Ry.,  75  Pa.  83— §228,  n.  (23)  (h). 
Criswell  v.  Altemus,  20  Pa.  124— §186,  n.  (1)   (a). 
Croasdale  v.  Von  Boyneburgk,  206  Pa.  15— §183,  n.  (5)   (d). 
Cromelien  v.  Brink,  29  Pa.  522— §§126,  n.  (3)  (c) ;  228,  n.  (17)  (a). 
Cromley  v.  R.  R.,  211  Pa.  429— §228,  n.  (23)  (f),  (h). 
Crosby  v.  Massey,  1  P.  &  W.  229— §228,  n.  (11)  (b). 
Cross  v.  Tyrone  Co.,  121  Pa.  387— §228,  n.  (22)   (e). 
Crouse  v.  Miller,  10  S.  &  R.  155— §228,  n.  (26)  (b). 
Crown  Slate  Co.  v.  Allen,  199  Pa.  239— §228,  n.  (14)   (a). 
Crumley  v.  Coal  Co.,  13  Pa.  Super.  231— §110,  n.  (2)   (a). 
Crum  v.  Burke,  25  Pa.  377— §228,  n.  (2)   (a). 
Crutcher  v.  Com.,  6  Whar.  340— §§46,  n.  (2)  (e) ;  182,  n.  (2)  (z). 
Culin  v.  Glass  Works,  108  Pa.  220— §183,  n.  (2)   (a). 
Cullum  v.  Wagstaff,  48  Pa.  300— §228,  n.  (1)   (h) ;  n.  (22)   (n). 
Cumberland  Val.  R.  R.  v.  Rhoadarmer,  107  Pa.  214— §228,  n.  (17)  (d). 
Cunningham  v.  Everett,  24  Pa.  Super.  469— §190,  n.  (3)   (d) ;  n.  (13) 

(n);192,n.  (2)  (b). 

Cunningham  v.  MacCue,  31  Pa.  469— §228,  n.  (13)  (b). 
Cunningham  v.  Patton,  6  Pa.  355— §228,  n.  (20)  (c2). 
Cunningham  v.  Rogers,  225  Pa.  132— §187,  n.  (1)  (b) ;  n.  (2)  (a). 
Cunningham  v.  Smith,  70  Pa.  450— §228,  n.  (23)   (f). 
Curtin  v.  Somerset,  140  Pa.  70— §228,  n.  (21)  (i). 
Cupples  Wooden  Ware  Co.  v.  Howe,  164  Pa.  85— §43,  n.  (3)   (e)   (f3). 
Curtain  v.  Gephart,  175  Pa.  417— §228,  n.  (19)   (a). 
Curtis  v.  Patton,  6  S.  &  R.  135— §228,  n.  (13)  (k). 
Curtis  v.  Winston,  186  Pa.  492— §147,  n.  (4)   (c) ;  pages  517,  522,  Ap. 
Custer  v.  School  Dist.,  12  Pa.  Super.  102— §228,  n.  (22)  (e). 
Cutter  v.  Pierson,  26  Pa.  Super.  10— §§147,  n.  (4)  (c) ;  161,  n.  (3)  (r). 
Cycle  Co.  v.  Jones,  12  Pa.  Super.  135— §198,  n.  (3)   (a). 

Dailey  v.  Green,  15  Pa.  118— §228,  n.  (24)  (b). 
Dailey  v.  Iselin,  200  Pa.  200— §228,  n.  (24)   (m). 
Dailey  »s  Est.,  200  Pa.  140— §228,  n.  (18)   (q). 

619 


Dai-Del  TABLE  OF  CASES. 


Dalmas  v.  Kemble,  215  Pa.  410— §§88,  n.  (3)    (a) ;  228,  n.  (7)    (d) ; 

n.  (23)   (q). 

Daniel  v.  Daniel,  23  Pa.  198— §183,  n.  (2)   (q). 
Daniels  v.  Com.,  7  Pa.  371— §§228,  n.  (4)   (h);  230,  n.  (1)   (g). 
Danley  v.  Danley,  179  Pa.  170— §§187,  n.  (4)   (b) ;  228,  n.  (15)   (g). 
Danville  etc.  R.  B.  v.  Kase,  41  W.  N.  C.  411— §239,  n.  (2)   (t) ;  n.  (3) 

(a). 

Danziger  v.  Williams,  9  Pa.  234 — §146,  n.  (1)  (b). 
Darby  v.  Sharon  Hill  112  Pa.  66— §§146  n.  (2)   (h) ;  182  n.  (4)  (e). 
Darlington  v.  Speakman,  9  W.  &  S.  182— §§141,  n.  (1)  (f ) ;  232,  n.  (1) 

(b). 

Darrah  v.  Warnock,  1  P.  &  W.  21— §228,  n.  (4)  (f). 
D'Arros's  Ap.,  89  Pa.  51— §§190,  n.  (12)  (1) ;  228,  n.  (18)   (n2). 
Daughters  of  American  Revolution  v.  Schenley,  204  Pa.  572 — §§182, 

n.  (4)   (e),  (k);231,  n.  (1)   (a). 
Davenport  v.  Wright,  51  Pa.  292— §§161,  n.  (5)  (k) ;  190,  n.  (12)  (a) ; 

198,  n.  (1)  (c). 

Davidson  v.  Traction  Co.,  4  Pa.  Super.  86— §185,  n.  (3)  (a). 

Davies  v.  Transit  Co.,  228  Pa.  176— §228,  n.  (19)   (p) ;  n.  (21)   (n). 

Davis 's  Ap.,  83,  Pa.  348— §45,  n.  (2)   (j). 

Davis  v.  Barr,  5  S.  &  R.  516— §43,  n.  (1)  (h) ;  n.  (3)  (c3). 

Davis  v.  Bigler,  62  Pa.  242— §228,  n.  (19)  (a). 

Davis  v.  Church,  1  W.  &  S.  240— §228,  n.  (24)   (f). 

Davis  v.  Galbraith,  184  Pa.  442— §228,  n.  (20)   (a). 

Davis  v.  Hood,  13  Pa.  170— §§182,  n.  (2)  (c) ;  233,  n.  (1)   (a). 

Davis  v.  Ins.  Co.  5  Pa.  Super.  506— §§82,  n.  (1)   (a) ;  185,  n.  (3)  (a) ; 

186,  n.  (1)   (a);  228,  n.  (24)   (12). 
Davis  v.  Ins.  Co.,  40  W.  N.  C.  569— §228,  n.  (24)  (12). 
Davis  v.  R.  R.,  34  Pa.  Super.  388— §232,  n.  (1)  (f). 
Dawson  v.  Condy,  7  S.  &  R.  366— §43,  n.  (9)  (e). 
Dawson  v.  Robinson,  3  W.  N.  C.  453— §228,  n.  (19)   (a). 
Dawson 's  Ap.,  15  Pa.  488— §126,  n.  (3)   (b). 
Deal  v.  Bogue,  20  Pa.  228— §228,  n.  (19)  (a),  (b) ;  n.  (20)  (s) ;  n.  (22) 

(c2). 

Deal  v.  McCormick,  3  S.  &  R.  343— §228,  n.  (20)   (c). 
Dean's  Ap.,  90  Pa.  106— §228,  n.  (24)   (J3). 
Dean  v.  Herrold,  37  Pa.  150— §228,  n.  (19)  (a) ;  n.  (25)  (w). 
Deaven's  Est.,  32  Pa.  Super.  205— §229,  n.  (2)  (h). 
De  Cou  Bros.  v.  Englander,  39  Pa.  Super.  243— §§197,  n.   (1)    (e) ; 

199,  n.  (1)   (h). 

Deemer  v.  R.  R.,  212  Pa.  491— §71,  n.  (1)   (e). 

Deford  v.  Reynolds,  36  Pa.  325— §228,  n.  (23)   (h).  • 

DeFrance  v.  DeFrance,  34  Pa.  385— §228,  n.  (23)   (d). 

DeGrote  v.  DeGrote,  175  Pa.  50— §228,  n.  (24)  (m),  (p2). 

DeHaven's  Est.,  25  Pa.  Super.  507— §§125,  n.  (1)    (h) ;  228,  n.  (15) 

(c);  n.  (18)   (k);n.  (24)   (s3). 

Deiser  v.  Sterling,  10  S.  &  R.  119— §235,  n.  (1)  (a). 
Delany  v.  Robinson,  2  Whar.  503— §228,  n.  (21)   (a). 
De  La  Vergue  Co.  v.  Kolischer,  214  Pa.  400— §228,  n.  (18)  (u). 
Delaware  &  Atl.  Tel.  Co.'s  Case,  37  Pa.  Super.  151— §80,  n.  (5). 

620 


TABLE  OF  CASES.  Del-Dix 


Delaware  Canal  Co.  v.  McKeen,  52  Pa.  117— §§146.  n.  (1)   (d) :  228,  n. 

(11)  (e),  (g). 

Delaware  Canal  v.  Com.,  60  Pa.  367— §228,  n.  (1)  (a)  (b) ;  n.  (17)  (a). 
Delaware  &  Hudson  Canal  Co.  v.  Barnes,  31  Pa.  193—8228,  n.   (20) 

(12)  ;n.  (25)  (j). 

Delaware  &  Hudson  Co.  v.  Boro.,  224  Pa.  387— §71,  n.  (1)   (g). 
Delaware  &  Hudson  Canal  Co.  v.  Genet,  169  Pa.  343— §59,  n.  (4)   (d). 
Delaware  &  Hudson  Canal  Co.  v.  Torrey,  33  Pa.  143— §228,  n.  (20) 

(h). 

Delaware  Towboat  Co.  v.  Starrs,  69  Pa.  36— §228,  n.  (24)  (e2). 
Dempsey  v.  Harm,  20  W.  N.    C.  266— §228,  n.  (11)  (a). 
Dempsey  v.  Savings  Co.,  26  Pa.  Super.  633— §43,  n.  (3)   (p). 
Denlinger  v.  P'ower  Co.,  32  Pa.  Super.  418— §§163,  n.  (4) ;  168,  n.  (3). 
Dennis  v.  Alexander,  3  Pa.  50— §§183,  n.  (4)  (m) ;  228,  n.  (19)  (a) ;  n. 

(20)   (1). 
Dennison  Twp.  Private  Road,  13  Pa.  Super.  227— §§182,  n.  (4)   (k) ; 

228  n.  (1)   (a);  231,  n.  (1)   (a). 

Dennison  v.  Fairchild,  7  Watts  309— §228,  n.  (24)   (f2). 
Denniston  v.  Phila.  Co.,  1  Pa.  Super.  599— §187,  n.  (1)   (b). 
Depuy  v.  Okie,  2  Mona.  769— §242,  n.  (1)  (e). 
De  Eoy  v.  Richards,  8  Pa.  Super.  119— §§187,  n.  (1)   (b),  (g) ;  n.  (3) ; 

198,  n.  (2)   (a). 

Devereaux  v.  Roper,  1  Phila.  182— §43,  n.  (10) 
Devers  v.  Sollenberger,  25  Pa.  Super.  64— §196,  n.  (2)   (b). 
Devlin  v.  Light  Co.,  198  Pa.  585— §228,  n.  (23)  (e). 
Devlin  v.  Snellenburg,  132  Pa,  186— §228,  n.  (23)  (e). 
DeWalt  v.  Bartley,  146  Pa.  525— §36,  n.  (2)  (b),  (c) ;  n.  (3)  (b),  (c). 
D'Homergue  v.  Morgan,  3  Whar.  26— §228,  n.  (26)   (b) ;  n.  (30)   (h). 
Diamond  St.,  196  Pa.  254— §§42,  n.  (3) ;  48,  n.  (1)  (v2) ;  n.  (4) ;  182,  n. 

(1)  (b);n.  (4)  (a),  (k). 

Dick  v.  Huidekoper,  218  Pa.  380— §228,  n.  (6)   (d). 
Dick  v.  Williams,  130  Pa.  41— §228,  n.  (8)  (p). 
Dickey  v.  Norris,  216  Pa.  184— §228,  n.  (18)   (g),  (u). 
Didier  v.  Penna.  Co.,  146  Pa.  582— §228,  n.  (21)   (a). 
Dietrich  v.  Addams,  9  W.  N.  C.  492— §187,  n.  (1)  (f) ;  n.  (4)  (f ). 
Dietrich  v.  Ins.  Co.,  32  Pa.  Super.  234— §§147,  n.  (4)  (c) ;  155,  n.  (1) 

(a). 

Dietrich  v.  Lancaster,  212  Pa.  566— §228,  n.  (24)   (b). 
Dietrich  v.  Loughran,  29  Pa.  Super.  320— §242,  n.  (1)   (j). 
Dikeman  v.  Butterfield,  135  Pa.  236— §74,  n.  (1)  (f). 
Dillman's  Ap.,  2  Mona.  733— §228,  n.  (5)   (a). 
Dilworth  v.  Kennedy,  201  Pa.  388— §228,  n.  (18)   (m). 
Dime  Savings  Inst.  v.  Bank,  61  Pa.  391— §228,  n.  (21)   (h) ;  n.  (22) 

(h). 

Dimmick  v.  Sexton,  125  Pa.  334— §228,  n.  (21)   (a). 
Dinan  v.  Supreme  Council,  210  Pa.  456— §228,  n.  (23)   (h). 
Dinan  v.  Supreme  Council,  213  Pa.  489— §228,  n.  (24)   (p2). 
Dingee  v.  Jackson,  23  Pa.  176— §228,  n.  (22)  (p2). 
Ditmars  v.  Com.,  47  Pa.  335— §228,  n.  (21)   (a). 
Dixon  v.  Daub,  17  Pa.  Super.  168— §228,  n.  (23)   (g),  (h). 

621 


Dob-Dun  TABLE  OF  CASES. 


Doberneck's  Ap.,  1  Pa.  Super.  637— §108,  n.  (2)   (a). 

Dodds  v.  Dodds,  9  Pa.  315— §146,  n.  (2)  (h). 

Dolan's  Ap.,  108  Pa.  564— §182,  n.  (4)   (a). 

Donaldson  v.  Danville  Bank,  20  Pa.  245— §228,  n.  (24)   (J4). 

Donoghue's  License,  28  Pa.  Super.  323— §228,  n.  (24)   (s3). 

Donoghue  v.  Traction  Co.,  17  Pa.  Super.  582— §228,  n.  (9)  (e) ;  n.  (24) 

(p2). 

Dooner  v.  Canal  Co.,  164  Pa.  17— §228,  n.  (21)   (h). 
Dorman  v.  Turnpike  Co.,  3  Watts  126— §228,  n.  (15)  (a). 
Dormer  v.  Brown,  72  Pa.  404— §66,  n.  (2)  (b). 
Dorscheimer's  Est.,  9  Pa.  Super.  422— §43,  n.  (17)   (i). 
Dosch  v.  Diem,  176  Pa.  603— §228,  n.  (21)  (h) ;  n.  (24)  (a2). 
Dotterer  v.  Scott,  29  Pa.  Super.  553— §§185,  n.  (3)   (a);  186,  n.  (1) 

(a). 

Dotts  v.  Fetzer,  9  Pa.  88— §228,  n.  (27)   (f). 
Dougherty  v.  Loebelenz,  9  Pa.  Super.  344— §228,  n.  (19)   (a). 
Dougherty  v.  Cumberland  Co.,  22  Pa.  Super.  591— §§190,  n.  (3)    (a) ; 

191,  n.  (1)  (b). 

Douglass  v.  Com.,  108  Pa.  559— §38,  n.  (1)  (g). 
Downey  Bros.  v.  R.  R.  219  Pa.  32— §198,  n.  (2)  (a). 
Downing  v.  Baldwin,  1  S.  &  R.  298— §§147,  n.  (1) ;  n.  (4)   (a) ;  161, 

n.  (5)   (e);233,  n.  (2)   (b). 

Doyle  v.  Com.,  107  Pa.  20— §43,  n.  (2)   (k) ;  n.  (5)   (t). 
Doyle  v.  Reiter,  32  Pa.  Super.  251— §§74,  n.  (1)  (s) ;  228,  n.  (24)  (z3). 
Doylestown  Dist.  Co.'s  Case,  9  Pa.  Super.  86 — §183,  n.  (4)  (a),  (c).  - 
Drape  v.  Niebaum,  26  P.  L.  J.  63— §43,  n.  (7)   (p). 
Dreibilbis  v.  Ebenshade,  6  Pa.  Super.  182— §228,  n.  (20)   (d),  (e) ;  n. 

(21)  (k). 

Drenkle  v.  Garber,  7  Watts  122— §222,  n.  (1)   (f). 
Drennan's  Est.,  118  Pa.  176— §229,  n.  (2)   (a). 

Drenning  v.  Wesley,  189  Pa.  160— §§185,  n.  (1)  (b) ;  228,  n.  (24)  (p2). 
Drew  v.  Com.,  1  Whar.  279— §230,  n.  (1)   (g). 
Drexel  v.  Man,  6  W.  &  S.  386— §§38,  n.   (1)    (b) ;  141,  n.   (1)    (c) ; 

161,  n.  (8)   (a);  228,  n.  (11)   (c) ;  n.  (15)   (a). 
Drum  v.  Uplinger,  9  Pa.  Super.  404— §43,  n.  (3)   (k). 
Drumond's  Ap.,  2  Mona.  775— §242,  n.  (2)   (c). 
Duane  v.  Addicks,  155  Pa.  124— §§74,  n.  (1)  (s) ;  228,  n.  (24)  (z3). 
Dubois  v.  Glaub,  52  Pa.  238— §228,  n.  (24)   (a4). 
DuBois  v.  Lord,  5  Watts  49— §228,  n.  (23)   (e). 
Dubois  v.  Turner,  4  Yeates  361— §11,  n.  (4)   (a). 
Dubosq  v.  Guardians  of  the  Poor,  1  Bin.  415— §228,  n.  (24)  (b). 
Duff's  Road,  66  Pa.  459— §228,  n.  (24)   (m). 
Duff  v.  Thrall,  39  Pa.  Super.  254— §240,  n.  (1)   (a). 
Duffy  v.  Kaufman,  18  Pa.  Super.  362— §74,  n.  (1)  (1),  (s). 
Duggan  v.  B.  &  0.  R.  R.,  159  Pa.  248,  256— §200,  n.  (3)  (a). 
Duke  v.  Gas  Co.,  220  Pa,  348— §228,  n.  (18)   (g). 
Dull's  Ap.,  108  Pa.  176— §229,  n.  (2)   (a). 
Duncan  v.  Kirkpatrick,  13  S.  &  R.  292— §243,  n.  (1)  (b) ;  n.  (4)  (d) ; 

n.  (5)   (a),  (b). 
Duncan  v.  Sherman,  121  Pa.  520— §228,  n.  (22)  (b). 

622 


TABLE  OF  CASES.  Dun-Elb 


Dungan,  Hood  &  Co.  v.  Ry.,  41  Pa.  Super.  61— §228,  n.  (22)   (a). 
Dunmore  Boro.  School  Dist.  v.  Wahlers,  28  Pa.  Super.  35— §54,  n.  (3). 
Dunmore  Sch.  Dist.  v.  Wahlers,  28  Pa.  Super.  39— §228,  n.  (24)   (e). 
Duquesne  Boro.  v.  Cole,  7  Pa.  Super.  474— §43,  n.  (8)   (e). 
Duquesne  Nat.  Bank  v.  Williams,  155  Pa.  48 — §186,  n.  (1)  (h). 
Durbin  v.  Com.,  45  Pa.  Super.  156— §43,  n.  (7)  (w). 
Durborrow's  Ap.,  87  Pa.  237— §11,  n.  (4)   (b). 
Duvall  v.  Darby,  38  Pa.  56— §§161,  n.  (6)  (a)  j  228,  n.  (11)  (a). 
Dyott's  Est.,  2  W.  &  S.  557— §§99,  n.  (2) ;  222,  n.  (1)  (a) ;  228,  n.  (11) 
(a).  i 

Eakman  v.  Sheaffer,  48  Pa.  176— §§161,  n.  (5)   (h) ;  190,  n.  (12)   (a). 

Eardley  v.  Keeling,  10  Pa.  Super.  339— §228,  n.  (23)  (b). 

Earle  v.  Arbogast,  180  Pa.  409— §228,  n.  (19)   (a),  (i). 

Barley's  Ap.,  90  Pa.  321— §228,  n.  (24)  (z3). 

Earon  v.  Mackey,  196  Pa.  452— §§161,  n.  (3)  (s) ;  228,  n.  (20)   (c2). 

East  Franklin  Overseers  v.  Overseers,  23  Pa.  Super.  522 — §85,  n.  (2) 

(d). 

Easton  Boro.  v.  Neff,  102  Pa.  474— §§82,  n.  (1)  (a) ;  228,  n.  (24)  (12). 
Easton  Boro.  v.  Water  Co.,  97  Pa.  554— §77,  n.  (6)   (a). 
Easton  Boro.  v.  Worthington,  5  S.  &  R.  130— §228,  n.  (3)  (a). 
Ebersoll  v.  Krug,  3  Bin.  528— §§43,  n.  (2)  (q) ;  182,  n.  (2)  (j) ;  228,  n. 

(8)  (c). 

Ebert  v.  Kaufman,  34  Pa.  Super.  487— §242,  n.  (1)  (m). 
Eby  v.  Guest,  94  Pa.  160— §228,  n.  (1)   (d). 
Eckels  v.  Stuart,  209  Pa.  285— §228,  n.  (18)   (c2). 
Eckert  v.  Flowry,  43  Pa.  46— §228,  n.  (23)  (e). 
Eckfeldt's  Ap.,  13  Pa.  171— §45,  n.  (3)   (g). 
Eckman  v.  Eckman,  68  Pa,  460— §228,  n.  (20)  (r) ;  n.  (21)  (a). 
Edenburg  Boro.  Overseers  v.  Poor  District,  5  Pa.  Super.  516 — §§85,  n. 

(2)  (d) ;  199,  n.  (1)  (b) ;  228,  n.  (18)  (p) ;  page  527,  Ap. 
Edgar  v.  Boies,  11  S.  &  R.  445— §228,  n.  (25)  (a). 
Edgar  v.  Edgar,  23  Pa.  Super.  220— §61,  n.  (2)  (c). 
Edgeworth  Boro,  25  Pa.  Super.  554— §§  48,  n.  (1)  (f) ;  56,  n.  (4)  (a) ; 

228,  n.  (24)  (n3). 
Edwards  v.  Gimbel  Bros.,  187  Pa.  78— §§147,  n.  (4)   (g) ;  161,  n.  (5) 

(b) ;  228,  n.  (19)  (a) ;  n.  (20)  (d),  (g). 

Edwards  v.  Woodruff,  25  Pa.  Super.  575— §228,  n.  (23)  (k). 
Edwards  v.  Tracy,  62  Pa.  374— §§161,  n.  (5)  (p) ;  190,  n.  (13)  (f). 
Egbert  v.  Payne,  99  Pa.  239— §228,  n.  (20)   (e) ;  n.  (23)   (e),  (h),  (i). 
Ege's  Ap.,  2  Watts  283— §126,  n.  (3)   (c). 
Ege  v.  Medlar,  82  Pa.  86— §228,  n.  (23)   (e). 
Eichelberger  v.  Nicholson,  1  S.  &  R.  430— §43,  n.  (3)  (h). 
Eichert's  Est.,  155  Pa.  59— §43,  n.  (6)  (m),  (f2). 
Eifert  v.  Lythe,  37  W.  N.  C.  416— §228,  n.  (24)   (h2). 
Eisaman  v.  Eisaman,  201  Pa.  11— §228,  n.  (18)  (m). 
Eisenberg  v.  Fraim,  15  Pa.  Dist.  445— §82,  n.  (2)   (c) ;  161,  n.  (6)  (f). 
Eisler  v.  Marshall,  59  P.  L.  J.  397— §240,  n.  (1)  (b). 
Eister  v.  Paul,  54  Pa.  196— §228,  n.  (23)  (c),  (d),  (f). 
Elbert  v.  Folwell,  1  W.  N.  C.  228— §190,  n.  (12)   (a). 

623 


Eld-Eva  TABLE  OF  CASES. 


Elder  Twp.  Dist.  v.  R.  R.,  26  Pa.  Super.  112— §232,  n.  (1)  (p). 
Elderton  Boro.  Overseers  v.  Overseers,  2  Pa.  Super.  397 — §§85,  n.  (1) 

(a);  228,  n.  (18)   (p). 

Eldred  v.  Hazlet,  38  Pa.  16— §228,  n.  (1)  (b) ;  (17)  (a). 
Eldridge  v.  Francis,  18  Phila.  656— §43,  n.  (9)   (d). 
Election  Court,  204  Pa.  92— §35,  n.  (1)  (g). 
Election  Case,  65  Pa.  20— §§48,  n.   (1)    (x) ;  161,  n.  (4)    (r) ;  182,  n. 

(4)    (t2). 

Elk  Co.  v.  Brennan,  203  Pa.  232— §228,  n.  (19)  (m);  n.  (20)  (g),  (h). 
Elk  Twp.  Overseers  v.  Overseers,  18  W.  N.  C.  438— §85,  n.  (1)   (a) ; 

n.  (2)   (d). 
Elk  Township  School  Dist.,  146  Pa.  1— §§48,  n.  (1)  (e),  (k2) ;  182,  n. 

(4)   (z). 

Elkins  v.  McKean,  79  Pa.  493— §228,  n.  (23)   (e). 
Elkinton  v.  Fennimore,  13  Pa.  173— §228,  n.   (30)    (a). 
Elliott  v.  Ins.  Co.,  66  Pa.  22— §228,  n.  (23)  (f). 
Ellis  v.  Ins.  Co.,  9  Pa.  Super.  392— §§228,  n.  (5)  (a) ;  n.  (8)  (g) ;  239, 

n.  (1)   (a),  (b). 

Ellis  v.  Society,  16  Pa.  Super.  607— §228,  n.  (30)   (b). 
Ellison  v.  Hosie,  147  Pa.  336— §228,  n.  (18)  (s). 
Ellmaker  v.  Buckley,  15  S.  &  R.  72— §228,  n.  (24)  (k),  (w3). 
Elmes  v.  Elmes,  9  Pa.  166— §222,  n.  (1)  (h). 
Ely  v.  Eager,  3  Pa.  154— §228,  n.  (26)  (a). 
Emanuel's  Est.,  13  Pa.  Super.  43— §228,  n.  (18)   (q). 
Emerson  v.  Shoonmaker,  135  Pa.  437— §228,  n.  (4)   (f). 
Emery  Lumber  Co.  v.  County,  28  Pa.  Super.  451— §228,  n.  (18)   (g). 
English's  Ap.,  119  Pa.  533— §74,  n.  (1)  (i). 

English  v.  English,  19  Pa.  Super.  586— §§43,  n.  (5)   (n) ;  61,  n.  (1). 
English  v.  Murtland,  214  Pa.  325— §186,  n.  (1)   (a) ;  228,  n.  (19)   (a), 
Ensminger  v.  Hess,  192  Pa.  432— §§147,  n.  (4)   (i) ;  148,  n.  (2)   (b) ; 

228,  n.  (19)  (h),  (i);  (20)  (a),  (g) ;  n.  (22)  (d). 
Entwisle  v.  Carey,  22  W.  N.  C.  127— §228,  n.  (20)   (a). 
Ephrata  Water  Co.  v.  Borough,  24  Pa.  Super.  353— §228,  n.  (19)   (a). 
Erie  v.  Bin,  10  Pa.  Super.  381— §190,  n.  (13)   (g). 
Erie  v.  Grant,  24  Pa.  Super.  109— §185,  n.  (5)   (a). 
Erie  Bank  v.  Bramley,  8  Watts,  530— §43,  n.  (3)  (e2). 
Erie  City  Iron  Works  v.  Barber,  106  Pa.  125— §§140,  n.  (13)   (f ) ;  228, 

n.  (22)  (q2). 

Erie  County's  Appeal,  14  Atl.  44— §228,  n.  (24)  (g3). 
Erie  R.  R.  v.  Johnson,  101  Pa.  555— §228,  n.  (20)  (a). 
Erie  v.  Schwingle,  22  Pa.  384— §228,  n.  (15)  (a). 
Erie  R,  R,  v.  Smith,  125  Pa.  259— §228,  n.  (20)   (12) ;  n.  (25)   (j). 
Eslen's  Est.,  211  Pa.  215— §§105,  n.  (1)   (a) ;  111,  n.  (1)   (b) ;  117,  n. 

(5)  (a) ;  120,  n.  (1) ;  228,  n.  (18)  (k) ;  229,  n.  (2)  (c). 
Esling's  Ap.,  89  Pa.  205— §182,  n.  (4)   (e). 
Evans's  Est.,  150  Pa.  212— §146,  n.  (2)  (g). 
Evans  v.  Bourse,  215  Pa.  652— §228,  n.  (20)   (j). 
Evans  v.  Clover,  1  Grant  164— §228,  n.  (24)  (m). 
Evans  v.  Evans,  155  Pa.  572— §228,  n.  (20)   (a). 
Evans  v.  Mengel,  1  Pa.  68— §228,  n.  (23)   (e). 

624 


TABLE  OF  CASES.  Eva-Fin 


Evans  v.  See,  23  Pa.  88— §228,  n.  (26)   (a). 

Everhart  v.  Searle,  71  Pa.  256— §228,  n.  (22)  (r). 

Everman's  Ap.,  67  Pa.  335— §43,  n.  (6)   (r). 

Everson  v.  Ziegfeld,  22  Pa.  Super.  79— §§88,  n.  (1) ;  228,  n.  (30)   (d). 

Ewing  v.  Cottman,  9  Pa.  Super.  444— §186,  n.  (1)  (a) ;  187,  n.  (4)  (£)• 

Ewing  v.  Filley,  43  Pa.  384— §§34,  n.  (1) ;  233,  n.  (2)  (a). 

Eyster's  Appeal,  16  Pa.  372— §229,  n.  (1)   (a). 

Factoryville  &  Abington  Turnpike,  19  Pa.  Super.  613— §100,  n.   (2) 

(b). 

Fagne's  Est.,  19  Pa.  Super.  638— §228,  n.  (18)   (q). 
Fair's  Est.  34  Pa.  Super.  263— §§45,  n.  (3)   (f) ;  190,  n.  (15)  (b). 
Far  v.  Swan,  2  Pa.  245— §§187,  n.  (4)  (b) ;  228,  n.  (15)  (g). 
Fargo  v.  Ry.,  81%  Pa.  266— §35,  n.  (2)  (b),  (d). 
Farley  v.  Ry.,  32  Pa.  Super.  413— §155,  n.  (1)  (b). 
Farmers'  Ins.  Co.  v.  Bair,  82  Pa.  33— §228,  n.  (23)   (i) ;  n.  (24)   (a2). 
Farmers'  Ins.  Co.  v.  Simmons,  30  Pa.  299— §228,  n.  (24)   (n). 
Farquhar  v.  McAlery,  142  Pa.  233— §200,  n.  (4). 
Farrel  v.  Ry.,  27  Pa.  Super.  127— §§82,  n.  (4) ;  126,  n.  (1)    (a) ;  n. 

(3)   (a);  n.  (4)   (q). 

Faucett  v.  Harris,  190  Pa.  98— §244,  n.  (1)   (e). 
Faunce  v.  Faunce,  20  Pa.  Super.  220— §228,  n.  (18)   (b2). 
Fawcett  v.  Fawcett,  95  Pa.  376— §228,  n.  (20)  (d);  n.  (21)  (h),  (i). 
Fay  v.  Fay,  27  Pa.  Super.  328— §61  n.  (2)    (b). 
Feagley  v.  Norbeck,  127  Pa.  238— §§182,  n.  (2)   (1) ;  190,  n.  (12)   (k) ; 

228,  n.  (18)   (g). 

Fearon  v.  Little,  227  Pa.  348— §228,  n.  (22)   (e2). 
Feig  v.  Meyers,  13  W.  N.  C.  123— §232,  n.  (1)   (e). 
Feingold  v.  Katz,  43  Pa.  Super.  333— §187,  n.  (1)   (g). 
Fell  v.  Betz,  22  Pa.  Super.  418— §228,  n.  (18)  (t),  (p2). 
Fenn  v.  McCarrell,  367— §228,  n.   (18)    (n). 
Fermanagh  Twp.  Overseers  v.  Overseers,  4  Pa.  Super.  573 — §85,  n. 

(2)   (d). 

Fernald  v.  Fernald,  5  Pa.  Super.  629— §228,  n.  (24)   (y2). 
Ferree  v.  Young,  6  Pa.  Super.  307— §50,  n.  (4)  (a). 
Ferrell  v.  Reed,  14  Pa.  Super.  27— §228,  n.  (20)  (a),  (j),  (m). 
Fidelity  Co.'s  Appeal,  11  W.  N.  C.  104— §228,  n.  (24)   (e4). 
Fidelity  Co.  v.  Harder,  212  Pa.  96— §228,  n.  (18)  (g),  (h). 
Fidelity  Trust  Co.'s  Ap.,  115  Pa.  157— §43,  n.  (6)   (J2). 
Fidelity  Trust  Co.'s  Ap.,  11  W.  N.  C.  104— §44,  n.  (6)  (y). 
Fidelity  Title  &  Trust  Co.  v.  Bell,  188  Pa.  637— §228,  n.  (15)  (a). 
Fidler  v.  Hershey,  90  Pa.  363— §228,  n.  (14)   (a). 
Fife  v.  Com.,  29  Pa.  429— §§46,  n.  (7)  (b) ;  151,  n.  (1)  (h) ;  n.  (2)  (e). 
Fifth  Ward  B.  &  L.  Asso.  v.  Boylan,  198  Pa.  250— §196,  n.  (1)  (a). 
Fifty-fifth  Street  Case,  16  Pa.  Super.  133— §231,  n.  (1)   (a). 
Figard  v.  Griffith,  1  Pitts.  157— §228,  n.  (18)  (c). 
Finch  v.  Conrade,  154  Pa.  326— §§82,  n.  (2)   (a) ;  n.  (3)    (a) ;  190,  n. 

(14)  (a),  (b);228,  n.  (11)  (a). 

Findlay  v.  Phila.,  217  Pa.  330— §228,  n.  (18)   (s),  (u). 
Fineburg  v.  Railway,  182  Pa.  97— §228,  n.  (21)   (h),  (j). 

625 
40 


Fin-Ford  TABLE  OF  CASES. 


Finley  v.  Stewart,  56  Pa.  183— §228,  n.  (24)   (a2). 

Finney's  Ap.,  37  Pa.  323— §§67,  n.  (1)  (f),  (h) ;  182,  n.    (3)  (b) ;  229, 

n.  (2)    (a),   (e). 
Finney  v.  Crawford,  2  Watts  294— §§43,  n.  (5)  (z) ;  n.  (7)  (1) ;  232,  n. 

(1)    (d). 

First  Nat.  Bank's  Ap.,  106  Pa.  68— §74,  n.  (1)  (e). 
First  Nat.  Bank's  Ap.,  4  Sad.  297— §185,  n.  (2)   (a),  (e). 
First  National  Bank  v.  Bank,  114  Pa.  1— §228,  n.  (23)   (e). 
First  National  Bank  v.  Coal  Co.,  210  Pa.  76— §228,  n.  (18)  (g),  (m). 
First  National  Bank  v.  Crosby,  179  Pa.  63— §228,  n.  (24)  (u). 
First  National  Bank  v.  Shreiner,  110  Pa.  188— §190  n.  (13)   (j). 
First  Presbyterian  Church,  107  Pa.  543— §182,  n.  (4)   (s2). 
Fish  v.  Brown,  5  Watts  41— §228,  n.  (23)    (h). 
Fisher  v.  Gas  Co.,  138  Pa.  301— §187,  n.  (1)   (b). 
Fisher  v.  Filbert,  6  Pa.  61— §228,  n.  (22)   (o). 
Fisher  v.  Kean,  1  Watts  259— §182,  n.  (2)  (a),  (f). 
Fisher  v.  King,  153  Pa.  3— §74,  n.  (1)   (s). 
Fisher  v.  Larick,  3  S.  &  R.  319— §228,  n.  (22)  (h). 
Fisher  v.  Larick,  7  S.  &  R.  99— §228,  n.  (22)   (o). 
Fisher  v.  Nyce,  60  Pa,  107— §222,  n.  (1)  (e). 

Fisher  v.  Penna.,  34  Pa.  Super.  500— §228,  n.  (20)   (12) ;  n.  (24)   (m). 
Fisher  v.  R.  R.,  227  Pa.  635— §228,  n.  (22)  (f2). 
Fisher  v.  Ruch,  12  Pa.  Super.  240— §228,  n.  (24)   (d2) ;  n.  (25)  (y). 
Fitsimmons  v.  Leckey,  3  P.  &  W.  Ill— §228,  n.  (1)   (b). 
Fitzgerald  v.  Caldwell,  Add.  119— §§43,  n.  (2)   (y) ;  182.  n.  (2)   (g2). 
Fitzgerald  v.  Electric  Co.,  207  Pa,  118— §190,  n.  (12)  (p). 
Fitzgerald  v.  Edison  Co.,  207  Pa.  118— §228,  n.  (20)  (a). 
Fitzgerald  v.  Illuminating  Co.,  207  Pa.  118— §187,  n.  (1)  (»). 
Fitzolden  v.  Lee,  2  Dall.  205— §243,  n.  (2)  (b),  (f). 
Fitzpatrick  v.  Engard,  175  Pa.  393— §§44,  n.  (3)  (a) ;  185,  n.  (2)   (a). 
Fitzpatrick  v.  Mortimer,  41  Pa.  Super.  587— 8S155,  n.  (1)    (a) ;  186, 

/t  \       /I    \  "  \       /        \       /    7 

n.  (1)  (b). 
Fitzpatrick  v.  Traction  Co.,  206  Pa.  335— §§185,  n.  (1)    (b) ;  228,  n. 

(20)   (a),  (n);n.  (21)   (a) ;  n.  (26)  (b). 

Fitzsimmons  v.  Lecky,  3  P.  &  W.  Ill— §228,  n.  (17)    (a),  (d). 
Fitzsimmons  v.  Robb,  173  Pa.  645— §§141,  n.  (1)   (f) ;  150,  n.  (1  )  (a). 
Fitzsimmons  v.  Robb,  193  Pa.  518— §228,  n.  (18)  (j),  (m). 
Fitzsimmons  v.  Salomon,  2  Bin.  436— §§140,  n.  (2)  (a) ;  146,  n.  (1)  (a). 
Fitzwater  v.  Stout,  16  Pa.  22— §228,  n.  (23)   (g). 
Flagg  v.  Searle,  31  L.  I.  101— §141,  n.  (1)   (a),  (c). 
Flanigan  v.  Wetherill,  5  Whar.  280— §§228,  n.  (3)   (a) ;  n.  (28)    (d) ; 

232,  n.  (j) 
Fleer  v.  Reagan,  24  Pa.  Super.  170— §§98,  n.  (1)    (a) ;  228,  n.  (18) 

(n2). 

Fleming's  Est.,  217  Pa.  279— §45.  n.  (3)   (k). 
Fleming  v.  Dixon,  194  Pa.  67— §228.  n.  (18)   (b). 
Floyd  v.  Hotchkiss,  5  Pa.  Super.  216— §228,  n.  (24)  (g2). 
Foehr  v.  R.  R.,  40  Pa.  Super.  7— §228,  n.  (14)    (a). 
Foote  v.  Product  Co.,  195  Pa,  190— §228,  n.  (23)   (o). 
Ford  v.  Anderson,  139  Pa.  261— §228,  n.  (23)   (f). 

626 


TABLE  OF  CASES.  For-Fri 


Foringer  v.  Stone  Co.,  223  Pa.  425— §187,  n.  (1)   (g). 

Forker  v.  Boro.,  130  Pa.  123— §228,  n.  (20)   (e). 

Forney  v.  Huntingdon  Co.,  6  Pa.  Super.  397— §§183,  n.  (5)   (b) ;  191, 

n.   (1)    (b). 

Forrest  v.  Nelson,  108  Pa.  481— §228,  n.  (23)   (1). 
Forsyth  v.  Matthews,  14  Pa.  100— §161,  n.  (5)  (a). 
Forsyth  v.  Trust  Co.,  220  Pa.  60— §228,  n.  (18)   (m). 
Fort  Pitt  B.  &  L.  Asso.  v.  Association,  159  Pa.  308— §228,  n.  (3)   (g). 
Foster  v.  Carson,  147  Pa.  157— §228,  n.  (24)   (z3). 
Fotterall  v.  Floyd,  6  S.  &  R.  315— §43,  n.  (6)  (v) ;  n.  (7)  (a). 
Fowler  v.  Boro.,  17  Pa.  Super.  366— §43  n.  (5)  (a). 
Fowler  Co.  v.  Engine  Works,  227  Pa.  314— §§147,  n.  (4)   (j);  187,  n. 

(1)   (g). 

Fowler  v.  Smith,  153  Pa.  639— §228,  n.  (19)  (h). 
Fox  v.  Academy,  6  W.  &  S.  353— §228,  n.  (22)  (d2). 
Fox  v.  Fox,  96  Pa.  60— §228,  n,  (19)  (a). 
Fox  v.  Loller,  229  Pa.  539— §228,  n.  (24)  (z3). 
Fox  v.  Seabury,  14  Dist.  57— §155,  n.  (1)   (c). 
Foy's  Election,  228  Pa.  14— §182,  n.  (4)   (f). 
Foy's  Case,  224  Pa.  358— §228,  n.  (24)  (r2). 
Fraim  v.  Ins.  Co.,  170  Pa.  151— §228,  n.  (17)  (f). 
France  v.  Ruddiman,  126  Pa.  257— §146,  n.  (2)  (h). 
Franciscus  v.  Reigart,  4  Watts  98— §228,  n.  (20)   (w). 
Frank  v.  Colhoun,  59  Pa.  381— §228,  n.  (24)   (b). 
Frankford  &  Bristol  Tpk.,  18  Phila.  444— §43,  n.  (5)   (e). 
Frankford  &  Oxford  Turnpike,  21  W.  N.  C.  346— §100,  n.  (2)  (a). 
Franklin  Twp.  v.  Osier,  91  Pa.  160— §126,  n.  (6)  (b). 
Franklin  Ins.  Co.  v.  Updegraff,  43  Pa.  350— §185,  n.  (2)   (a). 
Franklin  Ins.  Co.  v.  Gruver,  100  Pa.  266— §228,  n.  (25)  (h). 
Franklin  Trust  Co.  v.  R.  R.,  222  Pa.  96— §228,  n.  (20)   (z2). 
Frankstown  Road,  26  Pa.  472— §§183,  n.  (3)   (c) ;  228,  n.  (11)  (e) ;  n. 

(15)  (j). 

Fraser  v.  Pittsburg,  41  Pa.  Super.  103— §80,  n.  (6)   (b). 
Fraternal  Guardian's  Est,  159  Pa.  603— §239,  n.  (2)   (k). 
Frazier's  Est.,  188  Pa.  415— §126,  n.  (1)  (a) ;  n.  (4)  (i). 
Freeh  v.  Lewis,  32  Pa.  Super.  279— §228,  n.  (24)  (m). 
Frederick  v.  Gray,  10  S.  &  R.  573— §228,  n.  (24)  (a2). 
Fredericks  v.  R.  R.,  157  Pa.  103— §228,  n.  (21)  (a). 
Free's  Case,  33  Pa.  Super.  348— §182,  n.  (4)   (j). 
Freeland  v.  R.  R.,  66  Pa.  91— §161,  n.  (5)   (k). 
Freeman's  Est.,  227  Pa.  154— §228,  n.  (18)   (k). 
Freeman  v.  Sanner,  11  Pa.  Super.  42 — §74,  n.  (1)  (s). 
Freeman  v.  Pennock,  3  P.  &  W.  317— §228,  n.  (22)   (b). 
Freiler  v.  Kear,  126  Pa.  470— §83,  n.  (2). 
Fretton  v.  Karcher,  77  Pa.  423— §228,  n.  (23)  (e). 
Fretz's  Appeal,  15  Pa.  238— §228,  n.  (24)  (e3). 
Frey  v.  Wells,  4  Yeates  497— §146,  n.  (1)  (f). 

Frick  &  Lindsay  Co.  v.  Tel.  Co.,  44  Pa.  Super.  518— §43,  n.  (3)  (h3). 
Fricker  v.  Bridge  Co.,  197  Pa.  442— §§186,  n.  (1)  (c) ;  228,  n.  (20)  (a). 
Fries  v.  Penna.  R.  R.,  98  Pa.  142— §§239,  n.  (1)   (a) ;  228,  n.  (S)   (g). 

627 


Fri-Gal  TABLE  OF  CASES. 


Fritz  v.  Evans,  13  S.  &  R.  9— §235,  n.  (1)   (a). 

Fritz  v.  Heyl,  93  Pa.  77— §232,  n.  (1)  (e). 

Fritz  v.  Ins.  Co.,  154  Pa.  384— §187,  n.  (1)   (b). 

Fritzius  v.  Brennan,  28  Pa.  Super.  365— §190,  n.  (8). 

Fritzius  v.  Brennan,  29  Pa.  Super.  365— §190,  n.  (12)   (b). 

Fross's  Ap.,  105  Pa.  258— §45,  n.  (2)   (f). 

Frothingham  v.  Powder  Co.,  8  Sad.  28— §228,  n.  (19)   (a). 

Fry  v.  Glass  Co.,  219  Pa.  514— §228,  n.  (8)   (g). 

Fry  v.  Flick,  10  Pa.  Super.  362— §§183,  n.  (4)  (e) ;  185,  n.  (1)  (b) ;  228, 

n.  (19)  (a);n.  (23)  (h). 

Fry  v.  Keiter,  45  Pa.  Super.  538— §182,  n.  (4)   (e2). 
Fry  v.  Spatz,  29  Pa.  Super.  592— §110,  n.  (2)   (a). 
Fryberger  v.  Hotter,  24  Pa.  Super.  317 — §74,  n.  (1). 
Fuhnnan's  Est.,  21  Pa.  Super.  27— §43,  n.  (c). 
FuUer's  Est.,  41  Pa.  Super.  417— §228,  n.  (18)  (k). 
Fuller  v.  Fisk,  9  Lack.  Jur.  299— §173,  n.  (2). 
Fuller  v.  Trevor,  8  S.  &  R.  529— §§51,  n.  (3) ;  43,  n.  (9)  (i). 
Fuller  v.  Weaver,  175  Pa.  182— §228,  n.  (18)  (t) ;  n.  (31)  (g). 
Fullerton's  Est.,  146  Pa.  61— §§146,  n.  (2)   (a);  183,  n.  (3)   (f ) ;  186, 

n.  (2). 

Fullerton  v.  Peabody,  2  Pa.  Super.  145— §228,  n.  (24)  (r2),  (y3). 
Fulliman  v.  Rose,  160  Pa.  47— §228,  n.  (20)  (c). 
Fulmer  v.  Com.,  97  Pa.  503— §146,  n.  (2)  (d). 
Fulton's  Est.,  51  Pa.  204— §43,  n.  (2)   (c). 
Fulton  v.  Peters,  137  Pa.  613— §228,  n.  (30)   (d). 
Fulton  v.  County,  162  Pa.  294— §228,  n.  (23)  (1). 
Fulweiler  v.  Baugher,  15  S.  &  R.  45— §228,  n.  (24)  (m3). 
Furbush's  Est.,  220  Pa.  166— §228,  n.  (18)  (g),  (k). 
Furry  v.  Stone,  1  Yeates  186— §228,  n.  (4)  (f). 

Gabler  v.  Black,  210  Pa.  541— §§43,  n.  (3)  (n) ;  48,  n.  (1)  (u). 

Galbreath  v.  Colt,  4  Yeates  551— §43,  n.  (9)  (a). 

Galbraith  v.  Green,  13  S.  &  R.  85— §161,  n.  (9)  (a). 

Galbraith  v.  Phila.  Co.,  2  Pa.  Super.  359— §§161,  n.  (1)    (i) ;  187,  n. 

(4)  (a);228,n.  (11)  (a) ;  n.   (20)  (d). 

Galbraith  v.  Zimmerman,  100  Pa.  374— §228,  n.  (26)  (a),  (j). 
Galeton  Poor  Dist.  v.  Poor  Dist.,  18  Pa.  Super.  428— §§85,  n.  (1)  (a) ; 

108,  n.  (2)  (a) ;  182,  n.  (1)  (b) ;  n.  (4)  (s). 
Gallagher's  Est.,  218  Pa.  609— §228,  n.  (18)  (k). 
Gallagher's  Ap.,  89  Pa.  29— §43,  n.  (6)  (c). 
Gallagher  v.  Jackson,  1  S.  &  R.  492— §43  n.  (7)  (n). 
Gallagher  v.  Miller,  2  W.  N.  C.  241— §233,  n.  (3). 
Gallagher  v.  Steam  Co.,  188  Pa.  95— §228,  n.  (20)  (b),  (c). 
Gallagher  v.  Phila.,  4  Pa.  Super.  60— §228,  n.  (22)   (a). 
Gallagher  v.  Stewart,  34  Leg.  Int.  232— §§67,  n.  (1)   (a) ;  146,  n.  (2) 

(g). 

Gallagher  v.  Davis,  179  Pa.  504— §185,  n.  (1)   (q) ;  n.  (2)    (a). 
Galland  v.  Schroeder,  21  W.  N.  C.  103— §228,  n.  (20)  (e). 
Galloway's  Est.,  5  Pa.  Super.  272— §§45,  n.  (2)   (f ) ;  185,  n.  (2)  (a) ; 

n.  (3)  (a);n.  (5)   (a). 

628 


TABLE  OF  CASES.  Gam-Gib 


Gamble  v.  Woods,  53  Pa.  158— §§183,  n.   (4)   (a) ;  228,  n.  (24)    (13), 

(J4). 

Gangwere's  Ap.,  61  Pa.  342— §§48,  n.  (1)  (c) ;  182,  n.  (3)  (c). 
Gannon  v.  Fritz,  79  Pa.  303— §228,  n.  (24)  (c). 
Gans  v.  Drum,  24  Pa.  C.  C.  481— §59,  n.  (4)   (d). 
Garber  v.  Com.,  7  Pa.  265— §43,  n.  (5)  (y). 
Gardiner  v.  Marcy,  5  Watts  337— §228,  n.  (20)  (g). 
Gardner  v.  Lefevre,  1  P.  &  W.  73;  §43,  n.  (3)  (k). 
Gardner  v.  McLallen,  4  W.  N.  C.  435— §228,  n.  (23)  (c). 
Garman's  Est.,  32  Pa.  Super.  494— §43,  n.  (5)  (i). 
Garrett  v.  Jackson,  20  Pa.  331— §228,  n.  (22)  (e2),  (p2). 
Garrett  v.  Gonter,  42  Pa.  143— §228,  n.  (20)  (c). 
Garvey's  Est.,  13  Pa.  Super.  277— §44,  n.  (6)  (i). 
Gary  v.  Woodward,  127  Pa.  251— §228,  n.  (20)  (c). 
Gaskell  v.  Morris,  7  W.  &  S.  32— §228,  n.  (25)  (e),  (r). 
Gaskill  v.  Crawford,  130  Pa.  28— §§74,  n.  (1)  (g) ;  228,  n.  (24)  (z3). 
Gast  v.  Porter,  13  Pa.  533— §228,  n.  (20)  (u). 
Gates  v.  R.  R.,  1  Walk.  427— §90,  n.  (1). 
Gates  v.  R.  R.,  154  Pa.  566— §§42,  n.  (3) ;  43,  n.  (7)  (o) ;  47,  n.  (1)  (b) ; 

48,  n.  (4);182,n.  (1)  (b). 

Gates  v.  Johnston,  3  Pa.  52— §§183,  n.  (4)  (d) ;  228,  n.  (27)  (a). 
Gates  v.  Watts,  127  Pa.  20— §§187,  n.  (1)  (b) ;  228,  n.  (18)  (b). 
Gavigan  v.  Refining  Co.,  3  Pa.  Super.  628— §228,  n.  (20)  (d). 
Gay  v.  Chambers,  37  Pa.  Super.  41— §228,  n.  (18)   (m). 
Gaynor  v.  Quinn,  212  Pa.  362— §§150,  n.  (1)    (a) ;  228,  n.  (18)    (f2), 

(g2). 

Gazzam  v.  Reading,  202  Pa.  231— §228,  n.  (24)  (p2). 
Gearing  v.  Lacher,  146  Pa.  397— §228,  n.  (11)   (e) ;  n.  (20)   (g). 
Gehman  v.  Erdman,  105  Pa.  371— §228,  n.  (21)  (h). 
Geiger  v.  Welsh,  1  Rawle  349— §228,  n.  (22)  (i),  (q). 
Geiselman  v.  Shomo,  13  Pa.  Super.  1— §163,  n.  (3)   (i). 
Gemmill  v.  Butler,  4  Pa.  232— §235,  n.  (1)   (a). 
George  v.  Conneaut  Twp.,  18  Pa.  Super.  47— §185,  n.  (2)   (u) ;  n.  (3) 

(a);n.  (5)  (a). 

German  Reformed  Church  v.  Com.,  3  Pa.  282— §77,  n.  (6)  (b). 
Germantown  Ave.,  99  Pa.  479— §§146,  n.  (2)  (a) ;  182,  n.  (4)  (e) ;  228. 

n.  (18)  (g). 

Germantown  Ry.  Co.  v.  Walling,  97  Pa.  55— §228,  n.  (11)  (a). 
Gerwig  v.  Johnston  Co.,  207  Pa.  585— §187,  n.  (1)    (g) ;  n.  (3) ;  190, 

n.  (12)   (q). 

Gests's  Case,  9  S.  &  R.  317— §48,  n.  (1)  (f2). 
Gheen  v.  Heyburn,  1  Walk.  148— §228,  n.  (19)  (a). 
Gibberson  v.  Mills  Co.,  174  Pa.  369— §228,  n.  (20)  (h) ;  n.  (22)  (e). 
Gibbon's  Ap.,  104  Pa.  587— §11,  n.  (4)  (c). 
Gibbons  v.  Hook  &  Ladder  Co.,  184  Pa.  608— §228,  n.  (18)  (m2). 
Gibson's  Ap.,  108  Pa.  244— §§43,  n.  (9)  (1) ;  228,  n.  (30)  (m). 
Gibson's  Ap.,  25  Pa.  191— §222,  n.  (18)  (k). 
Gibson's  Est.,  228  Pa.  809— §228,  n.  (18)  (q). 
Gibson  v.  Cummings,  25  Pa.  231— §43,  n.  (8)   (b). 
Gibson  v.  Simmons,  134  Pa.  189— §228,  n.  (24)  (z3). 

629 


Gib-Gor  TABLE  OF  CASES. 


Gibson  v.  R.  R.,  226  Pa.  198— §188,  n.  (1). 

Gifford  v.  County,  142  Pa.  408— §§48,  n.  (1)  (c) ;  182,  n.  (3)  (i). 

Gifford  v.  Gifford,  27  Pa.  202— §228,  n.  (17)  (b). 

Gilchrist  v.  Hartley,  198  Pa.  132— §§186,  n.  (1)   (c) ;  228,  n.  (20)  (a). 

Gilchrist  v.  Rogers,  6  W.  &  S.  245— §228,  n.  (20)  (h) ;  n.  (23)  (e). 

Gillespie  v.  Agnew,  22  Pa.  Super.  557— §66,  n.  (1)   (d). 

Gillespie  v.  Campbell,  1  Sad.  145— §126,  n.  (4)   (b). 

Gillman  v.  Ry.,  224  Pa.  267— §228,  n.  (24)   (m). 

Gilmore  v.  Hunt,  66  Pa.  321— §228,  n;  (19)  (m) ;  n.  (20)  (h). 

Gilmore  v.  Dunleavy,  6  Pa.  Super.  603— §§182,  n.   (4)    (g2)  j  228,  n. 

(24)   (c4). 
Gilmore  v.  R.  R.,  104  Pa.  275— §§161,  n.  (4)  (g) ;  186,  n.  (1)   (a),  (f) ; 

228,  n.  (11)   (a);  (24)   (b). 
Gimber's  Est.,  184  Pa.  436— §228,  n.  (18)   (g). 
Ginder  v.  Bachman,  8  Pa.  Super.  405— §228,  n.   (20)    (a),   (b) ;   (21) 

(a). 

Ginther  v.  Boro.,  3  Pa.  Super.  403— §228,  n.  (30)   (d). 
Girard  v.  Gettig,  2  Bin.  234— §§82,  n.  (1)   (a) ;  161,  n.  (4)   (e). 
Girard  Ins.  Co.  v.  Stephenson,  37  Pa.  293— §228,  n.  (20)   (x). 
Girard  Trust  Co.  v.  Boyd,  45  Pa.  Super.  285— §183,  n.  (2)    (u). 
Girts  v.  Com.,  22  Pa.  351— §§146,  n.  (2)  (a),  (i) ;  183,  n.  (4)  (a) ;  228, 

n.  (1)  (b);n.  (17)  (a). 

Gish  v.  Brown,  171  Pa.  479— §187,  n.  (1)   (i),  (k) ;  n.  (4)   (f). 
Given  v.  Given,  25  Pa.  Super.  467— §§61,  n.  (2)   (d) ;  74,  n.  (1)   (m), 

(s);  228,  n.  (24)    (r2),   (a3). 

Glenfield  Boro.  Road,  5  Pa.  Super.  222— §231,  n.  (1)   (a). 
Glenn  v.  Copeland,  2  W.  &  S.  261— §228,  n.  (13)   (b). 
Glenn  v.  Davis,  2  Grant  153— §228,  n.  (4)  (c),  (f),  (g). 
Glenn  v.  Traction  Co.,  206  Pa.  135— §228,  n.  (24)   (b2). 
Glentworth's  Ap.,  38  L.  I.  342— §228,  n.  (18)  (k). 
Godshalk's  Est.,  24  Pa.  Super.  410— §§182,  n.  (2)  (f) ;  185,  n.  (1)  (o) ; 

n.  (3)    (a). 

Godshalk's  Est.,  20  Montg.  118— §228,  n.  (6)   (q). 
Godwin's  Est.,  22  Pa.  Super.  469— §43,  n.  (5)   (k) ;  n.  (6)   (y). 
Goggins  v.  Risley,  13  Pa.  Super.  316— §228,  n.  (18)   (j),  (m). 
Goldstein  v.  Twp.,  43  Pa.  Super.  158— §228,  n.  (24)    (p2). 
Gonser  v.  Smith,  115  Pa.  452— §228,  n.  (18)   (t). 
Good's  Case,  21  Pa.  Super.  625— §43,  n.  (6)   (b2). 
Good  v.  Good,  2  Mona.  665— §§222,  n.  (1)  (c) ;  224,  n.  (1). 
Good  v.  Mylin,  13  Pa.  528— §228,  n.  (20)   (k2). 
Goodhart  v.  Bishop,  142  Pa.  416— §190,  n.  (13)   (1). 
Good  Intent  Co.  v.  Hartzell,  22  Pa.  277— §§185,  n.  (2)  (a) ;  n.  (3)  (a) ; 

n.  (4)   (a);228,n.  (13)  (b). 
Goodman  v.  Gay,  15  Pa.  188— §232,  n.  (1)   (m). 
Goodwin  v.  Slusher,  3  Sad.  464— §228,  n.  (30)  (b). 
Googe  v.  Gaskill,  18  Pa.  Super.  39— §228,  n.  (18)   (i). 
Gordon  v.  Gordon,  208  Pa,  186— §61,  n.  (2)  (b). 
Gordon  v.  Kennedy,  2  Bin.  287— §228,  n.  (13)   (r). 
Gordonier  v.  Billings,  77  Pa.  498— §182,  n.  (3)   (a). 
Gorgas  v.  R.  R.,  144  Pa.  1— §228,  n.  (22)   (y). 

630 


TABLE  OF  CASES.  Gos-Gri 


Gosline  v.  Place,  32  Pa.  520— §§  11,  n.  (3)    (a),  (c) ;  37,  n.  (2)    (a), 

(d);42n.  (1)  (a),  (c) ;  48,  n.  (2)   (b). 
Goswiler's  Est.,  3  P.  &  W.  200— §126,  n.  (3)   (d). 
Gottschall  v.  Campbell,  20  Dist.  012—  §1,  n.  (1). 
Gottlieb  v.  Middleberg,  23  Pa.  Super.  525— §§43,  n.  (7)    (h),  (v) ;  74, 

n.  (1)  (s). 

Gould  v.  McFall,  118  Pa.  455— §243,  n.  (2)  (a),  (c). 
Graff  &  Co.'s  Est.,  146  Pa.  415— §43,  n.  (6)   (d). 
Graff  v.  Barrett,  29  Pa.  477— §190,  n.  (12)    (a). 
Graff  v.  R.  R.,  31  Pa.  489— §228,  n.  (23)    (f). 
Graham  v.  County,  16  Pa.  Super.  180— §43,  n.  (9)  (j). 
Graham  v.  Graham,  1  S.  &  R.  330— §228,  n.  (20)   (1). 
Graham  v.  Keys,  29  Pa.  189— §228,  n.  (4)   (f). 
Graham  v.  Moore,  4  S.  &  R.  467— §228,  n.  (22)  (k). 
Graham  v.  Smith,  25  Pa.  323— §228,  n.  (21)  (a) ;  n.  (23)  (g). 
Gram's  Ap.,  4  Watts  43— §228,  n.  (1)  (b) ;  n.  (1)  (a). 
Grambs  v.  Lynch,  4  Penny.  243— §228,  n.  (20)   (x). 
Grand  Lodge  A.  0.  U.  W.,  110  Pa.  613— §§43,  n.  (5)   (x) ;  182,  n.  (4) 

(s2);  228,  n.  (24)    (w2). 
Grant  v.  Com.,  71  Pa.  495— §§46,  n.  (10) ;  161,  n.  (5)  (x) ;  n.  (6)  (h) ; 

230,  n.  (1)   (b). 

Grant  v.  Rodgers,  6  Phila.  132— §243,  n.  (2)   (a). 
Grantz  v.  Price,  130  Pa.  415— §228,  n.  (11)  (a) ;  n.  (19)  (a). 
Grasser  v.  Eckart,  1  Bin.  575— §228,  n.  (11)   (e). 
Gratz  v.  Gratz,  4  Rawle  411— §161,  n.  (5)   (p). 
Gratz  v.  Phillips,  14  S.  &  R.  144— §228,  n.  (24)   (n3). 
Gravel  v.  Wolfe,  185  Pa.  83— §228,  n.  (18)   (t). 
Gravenstein  v.  Feger,  42  L.  I.  407— §225,  n.  (1)   (b). 
Gravenstine's  Ap.,  2  Penny.  61— §43,  n.  (6)   (b). 
Gray's  Ap.,  96  Pa.  243— §228,  n.  (24)   (h3). 
Gray  v.  Com.,  101  Pa.  380— §228,  n.  (24)   (p2). 

Gray  v.  Gas  Co.,  206  Pa.  303— §228,  n.  (2)  (c) ;  n.  (6)  (k) ;  n.  (7)  (b). 
Graybill  v.  Dietrich,  32  Pa.  Super.  482— §185,  n.  (1)   (h),  (o). 
Greason's  Case,  205  Pa.  630— §§225,  n.  (1)   (d) ;  226,  n.  (1). 
Greber  v.  Kleckner,  2  Pa.  289— §228,  n.  (20)   (h) ;  n.  (22)   (n). 
Green  v.  Boyd,  13  Pa.  Super.  651— §§74,  n.  (1)  (s) ;  228,  n.  (24)   (z3). 
Green  v.  Com.,  83  Pa.  75— §228,  n.  (20)  (a). 
Green  v.  Duffee,  231  Pa.  393— §117,  n.  (2)   (a),  (f). 
Green  v.  Paint  Co.,  25  Pa.  Super.  415— §§  11,  n.  (4)    (c) ;  44,  n.  (5) 

(b);  213,  n.  (1);  239,  n.  (2)   (q). 
Green  v.  Thompson,  172  Pa.  609— §161,  n.  (5)  (b). 
Green  v.  Mills,  103  Pa.  22— §§45,  n.  (2)   (b) ;  67,  n.  (1)   (i). 
Green  Twp.  Poor  Dist.  v.  Poor  Dist.,  5  Pa.  Super.  199— §85,  n.  (1)  (b). 
Greenawalt  v.  Dixon,  194  Pa,  363— §228,  n.  (18)   (m). 
Greene  v.  Tyler,  39  Pa.  361— §43,  n.  (5)  (r). 
Greenhoe  v.  College,  144  Pa.  131— §190,  n.  (12)   (a). 
Gregg  Twp.  v.  Jamison,  55  Pa.  468— §228,  n.  (20)   (b),  (c). 
Gribbel  v.  Brown,  202  Pa.  10— §228,  n.  (18)   (k2). 
Greib  v.  Kuttner,  135  Pa.  281— §§48,  n.  (2)   (a);  182,  n.  (4)   (i). 
Grier  v.  Boro.,  6  Pa.  Super.  542— §§187,  n.  (1)   (b) ;  n.  (2)   (e) ;  228, 

n.  (25)   (f). 

631 


Gri-Hal  TABLE  OF  CASES. 


Griesmer  v.  Hill,  225  Pa.  545— §188,  n.  (1). 

Griffith's  Appeal,  16  W.  N.  C.  249— §228,  n.  (24)  (z3). 

Griffith  v.  Edwards,  10  W.  N.  C.  271— §228,  n.  (24)   (m4.) 

Griffith  v.  Eshelman,  4  Watts  51— §228,  n.  (8)   (c). 

Griffith  v.  Sitgreaves,  81  Pa,  378— §50,  n.  (4)   (a). 

Grim's  Est.,  33  Pa.  Super.  587— §45,  n.  (3)   (d). 

Groff's  Est.,  36  Pa.  Super.  140— §228,  n.  (24)  (r2). 

Groff  v.  Trust  Co.,  32  Pa.  Super.  416— §§11,  n.  (4)  (c) ;  213,  n.  (1). 

Groff  v.  Trust  Co.,  38  Pa.  Super.  567— §45,  n.  (2)    (g). 

Groft  v.  Weakland,  34  Pa.  304— §228,  n.  (22)   (a). 

Groll  v.  Gegenheimer,  147  Pa.  162— §74,  n.  (1)   (p). 

Gropp  v.  Steel  Co.,  4  Pa.  Super.  621— §228,  n.  (23)  (d). 

Grothe's  Est.,  229  Pa,  186— §228,  n.  (15)   (a). 

Grubb's  Appeal,  82  Pa.  23— §182,  n.  (2)   (k). 

Guarantee  Trust  Co.  v.  Stover,  17  Dist.  684— §228,  n.  (18)   (n). 

Guckavan  v.  Traction  Co.,  203  Pa.  521— §228,  n.  (16)   (b). 

Guemple  v.  Traction  Co.,  224  Pa.  327— §187,  n.  (4)   (e). 

Guffey's  Ap.,  7  Pa.  Super.  478— §§43,  n.  (3)   (i2) ;  182,  n.  (4)   (a2). 

Guhr  v.  Chambers,  8  S.  &  R.  157— §232,  n.  (1)  (c). 

Guillon  v.  Redfield,  205  Pa.  293— §161,  n.  (6)   (a). 

Gundaker  v.  Ehrgott,  209  Pa.  284— §228,  n.  (18)   (m). 

Gunn  v.  Bowers,  2  Mona.  663— §43,  n.  (2)   (u). 

Gunn  v.  Bowers,  126  Pa.  552— §§43,  n.  (2)   (u) ;  141,  n.  (1)   (e) ;  228, 

n.  (18)  (w);232,  n.  (3)  (a),  (b). 
Guthrie  v.  Reid,  107  Pa.  251— §§141,  n.  (1)    (g) ;  228,  n.  (12)   (j) ;  n. 

(28)  (d);n.  (29)  (f). 

Guthrie  v.  Wilson,  40  Pa.  430— §§182,  n.  (2)  (b) ;  228,  n.  (11)   (a). 
Guyer  v.  Port,  155  Pa.  322— §228,  n.  (18)   (b). 
Guyer  v.  Spotts,  85  Pa.  51— §163,  n.  (3)   (f). 
Gyger's  Ap.,  15  W.  N.  C.  513— §71,  n.  (1)  (f). 

H.  T.'s  Case,  2  Penny.  84— §53,  n.  (1). 

H.  v.  T.,  208  Pa.  233— §196,  n.  (3) ;  n.  (11)   (a). 

Haag  v.  Knights  of  Friendship,  7  Pa.  Super.  425— §185,  n.  (3)   (a) ; 

n.  (4)  (a);n.  (5)  (a). 

Haas  v.  Evans,  5  W.  &  S.  252— §228,  n.  (3)  (a). 
Hade  v.  R.  R.,  42  Pa.  Super.  488— §43,  n.  (3)  (z2). 
Hafer  v.  McKelvey,  23  Pa.  Super.  202— §191,  n.  (1)  (b). 
Haggerty  v.  Boro.,  17  Pa.  Super.  151— §43,  n.  (10)   (c). 
Haines  v.  Com.,  99  Pa.  410— §§149,  n.  (1)   (a),  (b) ;  151,  n.  (1)   (c) ; 

n.  (4)  (a),  (b) ;  161,  n.  (2) ;  n.  (6)  (h) ;  n.  (7)  (t) ;  n.  (8)  (a),  (d). 
Haines  v.  Com.,  100  Pa.  317— §§161,  n.  (7)  (c) ;  228,  n.  (11)  (a). 
Haines  v.  Koons,  5  Kulp.  52— §43,  n.  (9)   (f). 
Haines  v.  Youn?,  13  Pa.  Super.  303— §190,  n.  (13)   (i). 
Haines  v.  Stauffer,  13  Pa.  541— §288,  n.  (22)   (h2). 
Hake  v.  Fink,  9  Watts  336— §228,  n.  (24)   (a2). 
Halahan  v.  Cassidy,  12  Pa.  Super.  227— §§183,  n.  (5)  (b),  (c) ;  228,  n. 

(9)  (c);n.  (24)  (z3). 
Haldeman  v.  Martin,  10  Pa.  369— §228,  n.  (22)    (J2). 

632 


TABLE  OF  CASES.  Hal-Har 


Hale  v.  Hale,  32  Pa.  Super.  37— §228,  n.  (24)  (m). 

Hale  Mfg.  Co.  v.  Norcross,  199  Pa.  254— §228,  n.  (18)   (i) 

Haley  v.  Chemical  Co.,  224  Pa.  316— §§88,  n.  (1)  (b) ;  185,  n.  (2)  (a) ; 

186,  n.   (1)    (a). 

Half  man  v.  Ins.  Co.,  160  Pa.  202— §228,  n.  (20)   (a). 
Hall's  App    56  Pa    238-§§43 ,  n.   (3)    (c2) ;  44,  n.   (6)    (w) ;  48,  n. 

(1)  (n2);  182,  n.  (2)  (a2). 

Hall  v.  Dunham,  1  W.  N.  C.  487— §228,  n.  (20)  (a). 

Hall  v.  Haines,  38  Pa.  Super.  517— §49,  n.  (2)  (b) 

Hall  v.  Lacy,  37  Pa.  366— §43,  n.  (3)   (q2) ;  n.  (9)   (1). 

Hall  v.  Law,  2  W.  &  S.  121— §228,  n.  (13)   (b). 

Hall  v.  Oyster,  168  Pa.  399— §182,  n.  (4)   (h). 

Hall  v.  Phillips,  164  Pa.  494— §186,  n.  (1)  (a). 

Hall  v.  Stanton,  2  W.  N.  C.  578— §187,  n.  (1)   (b). 

Hall  v.  Vanderpool,  156  Pa.  152— §228,  n.  (24)  (m). 

Haller's  Case,  44  Pa.  Super.  41 — §126,  n.  (4)   (h). 

Hallock  v.  Lebanon,  215  Pa.  1— §§82,  n.  (1)   (b)  :'l87,  n.  (1)    (g) ;  n 

(2)  (a);  228,  n.  (24)  (12). 

Hallowell's  Ap.,  20  Pa.  215— §§67,  n.  (1)  (f),  (h) ;  182,  n.  (3)  (b) ;  229, 

n.  (2)    (d). 

Hallowell  v.  Canning  Co.,  16  Pa.  Super.  60— §43,  n.  (2). 
Ham  v.  Canal  Co.,  142  Pa.  617— §228,  n.  (22)   (m). 
Hambright's  License,  42  Pa.  Super.  498— §182,  n.  (4)  (j). 
Hamet  v.  Dundass,  4  Pa.  178— §228,  n.  (20)  (1). 
Hamilton  v.  Aslin,  3  Watts  222— §239,  n.  (2)  (d). 
Hamilton  v.  Menor,  2  S.  &  R.  70— §228,  n.  (22)   (h),  (n). 
Hamilton  v.  Moore,  4  W.  &  S.  570— §161,  n.  (5)  (e),  (n). 
Hamilton  v.  Railroad  Co.,  194  Pa.  1— §228,  n.  (19)  (a) ;  n.  (20)  (a). 
Hamilton  v.  Pitts,  etc.  R.  R.  Co.,  190  Pa.  51— §228,  n.  (22)  (k). 
Hamilton  Street,  148  Pa.  640— §§182,  n.  (4)  (a),  (d) ;  183,  n.  (4)  (a) ; 

231,  n.  (1)  (a). 

Hamner  v.  Griffith,  1  Gr.  193— §43,  n.  (5)  (w). 
Hancock  v.  Melloy,  187  Pa.  471— §228,  n.  (18)  (h). 
Hanforth  v.  Ry.,  213  Pa.  365— §228,  n.  (24)   (p2). 
Hanhouser  v.  R,  R.,  222  Pa.  240— §§163,  n.  (1)   (b) ;  228,  n.  (6)   (f). 
Hanna  v.  Clark  (No.  2),  204  Pa.  149— §228,  n.  (18)  (g). 
Hannay  v.  Stewart,  6  Watts  487— §228,  n.  (23)  (e) ;  n.  (25)  (r). 
Hannum  v.  Ry.,  221  Pa.  454— §228,  n.  (7)   (f). 
Hanover  Turnpike  Co.  v.  Craighead,  5  Pa.  470— §182,  n.  (2)  (h). 
Hanscom  v.  Chipin,  27  Pa.  Super.  546— §74,  n.  (1)   (o). 
Hapgood  Shoe  Co.  v.  Saupp,  7  Pa.  Super.  480— §182,  n.  (1)   (b) ;  n. 

(4)    (i). 

Harbinson's  Est.,  145  Pa.  456— §228,  n.  (18)   (q),  (e2). 
Harding 's  Est.,  24  Pa.  189— §228,  n.  (18)   (k),  (q). 
Harding  v.  Lloyd,  3  Pa.  Super.  293— §§183,  n.  (4)   (e) ;  228,  n.  (11) 

(a);n.  (20)  (g). 
Hardoncourt  v.  Iron  Co.,  225  Pa.  379— §§88,  n.  (3)   (a) ;  n.  (4)   (a) ; 

126,  n.  (3)   (f);  228,  n.  (3)   (e). 
Hare  v.  Rice,  142  Pa.  608— §48,  n.  (5)  (b). 

633 


Har-Hau  TABLE  OF  CASES. 


Harger  v.  Commissioners,  12  Pa.  251— §§43,  n.  (2)   (a2) ;  182,  n.  (2) 
(i2);  243,  n.  (2)   (a). 

Harger  v.  McMains,  4  Watts  418— §228,  n.  (23)   (h). 

Barker  v.  Elliott,  7  S.  &  R.  284— §228,  n.  (18)   (s). 

Barker  v.  Orr,  10  Watts  245— §228,  n.  (8)  (o). 

Harley  v.  Ins.  Co.,  21  W.  N.  C.  403— §228,  n.  (27)   (a),  (c). 

Harlow  v.  Homestead  Borough,  194  Pa.  57— §228,  n.  (23)   (h),  (k). 

Harmony  v.  R.  R.,  222  Pa.  631— §228,  n.  (25)   (j). 

Harper  v.  Keely,  17  Pa.  234— §228,  n.  (5)   (a) ;  n.  (7)   (a),  (d). 

Harper  v.  Kean,  11  S.  &  R.  280— §228,  n.  (23)  (m). 

Harper  v.  Roberts,  22  Pa.  194— §§43,  n.  (1)  (h) ;  126,  n.  (5)  (a). 

Harris  v.  Harris,  35  L.  I.  124— §§228,  n.  (24)   (d4) ;  243,  n.  (3)  (f). 

Harris  v.  Mercur,  202  Pa.  313— §98,  n.  (2). 

Harris  v.  R.  R.,  156  Pa.  252— §§161,  n.  (3)  (p) ;  183,  n.  (2)  (c) ;  n.  (4) 
(a). 

Harris  v.  Sharpies,  202  Pa.  243— §121,  n.  (2)  (d). 

Harris  v.  Sheldon,  1  Mona.  188— §182,  n.  (2)  (i). 

Harris  v.  Traction  Co.,  180  Pa.  184— §§148,  n.  (1)  (a) ;  155,  n.  (1)  (a), 
(h). 

Harris's  Petition,  15  Pa.  Super.  471— §§  119,  n.  (1)   (a);  181,  n.  (1) 
(a);  190,  n.  (14)  (a). 

Harrisburg  Bank  v.  Forster,  8  Watts  304— §228,  n.  (20)  (c). 

Harrisburg  v.  Forster,  39  Pa.  Super.  238— §80,  n.  (6)  (a),  (b). 
Harrisburg,  etc.  Turnpike  Co.  v.  County,  225  Pa.  467— §228,  n.  (9)  (b). 
Harshman  v.  Twp.,  11  Pa.  Super.  638— §185,  n.  (2)  (a);  n.  (3)  (a). 
Hart  v.  Cooper,  129  Pa.  297— §§46,  n.  (5)   (d) ;  146,  n.  (2)   (i) ;  182, 

n.   (4)    (i). 

Hart  v.  Gregg,  10  Watts  185— §228,  n.  (25)   (c),  (e). 
Hart  v.  Girard,  56  Pa.  23— §228,  n.  (20)  (c). 
Hart  v.  Borough,  56  Pa.  23— §228,  n.  (21)  (h). 
Hart  v.  Weidzelski,  9  Kulp  313— §243,  n.  (4)   (b). 
Hartje  v.  Hartje,  35  Pa.  Super.  14— §§61,  n.  (2)  (f ) ;  113,  n.  (1)  (b) ; 

228,  n.  (6)   (e). 
Hartley  v.  Weideman,  28  Pa.  Super.  50— §228,  n.  (11)    (e) ;  n.   (24) 

(b),  (e4). 

Hartman  v.  Ins.  Co.,  21  Pa.  466— §228,  n.  (17)  (d),  (f),  (J2). 
Hartman  v.  Incline  Plane  Co.,  11  Pa.  Super.  438— §228,  n.  (21)  (g). 
Hartman  v.  Pulley  Co.,  38  Pa.  Super.  587— §117,  n.  (3)  (e). 
Hartman  v.  Stahl,  2  P.  &  W.  223— §132,  n.  (1)  (c). 
Hartman  v.  Shaffer,  71  Pa.  312— §187,  n.  (1)  (b). 
Harton  v.  Harton,  28  Pa.  Super.  492— §148,  n.  (1)   (g). 
Harvey  v.  Pollock,  148  Pa.  534— §74,  n.  (1)   (n). 
Haslage's  Ap.,  37  Pa.  440— §228,  n.  (24)   (m4). 
Haspel  v.  Lyons,  41  Pa.  Super.  285— §228,  n.  (24)  (m4). 
Hasson  v.  Klee,  168  Pa.  510— §228,  n.  (20)   (e). 
Hastings  Water  Co.  v.  Boro.,  216  Pa.  178— §§150,  n.  (1)   (a) ;  228,  n. 

(18)    (f2). 

Hauck  v.  Tidewater  Pipe  Line  Co.,  153  Pa.  366— §187,  n.  (1)  (b). 
Haught  v.  Irwin,  166  Pa.  548— §71,  n.  (1)   (a). 
Haughey  v.  Ry.,  210  Pa.  367— §43,  n.  (7)  (b),  (i). 

634 


TABLE  OF  CASES.  Hau-Hen 


Haupt  v.  Haupt,  15  Atl.  700— §228,  n.  (25)   (w). 

Haverly  v.  Mercur,  78  Pa.  257— §§82,  n.   (1)    (b) ;  182,  n.  (2)    (m)  j 

228,  n.  (24)   (12). 

Hawes  v.  O'Reilly,  126  Pa.  440— §187,  n.  (1)  (b)  j  n.  (3). 
Hawk  v.  Jones,  24  Pa.  127— §§43,  n.  (1)  (a) ;  n.  (3)  (j2) ;  84,  n.  (1) 

(p) ;  182,  n.  (2)  (q),  (b2). 

Hawkins  v.  Weightman,  1  W.  N.  C.  370— §228,  n.  (24)  (z3). 
Hawley  v.  Griffith,  187  Pa.  306— §228,  n.  (18)   (r). 
Hawn  v.  Stoler,  22  Pa.  Super.  307— §§88,  n.  (4)  (a) ;  126,  n.  (3)  (f ) ; 

228,  n.  (3)  (e);n.  (23)  (1). 
Haydenville  Mining  Co.  v.  Steffler,  17  Pa.  Super.  609— §§228,  n.  (19) 

(a),  (d);n.  (20)  (a),  (b),  (e). 
Hayes  v.  Railroad,  195  Pa.  184— §228,  n.  (21)  (h). 
Hayes's  Est.,  23  Pa.  Super.  570— §228,  n.  (18)    (q). 
Hayes's  Election,  214  Pa.  551— §§102,  n.  (2)   (b)  j  108,  n.  (2)   (d) ;  n. 

(3)   (e). 

Hays  v.  Carter,  226  Pa.  468— §228,  n.  (18)  (b). 
Hays  v.  Paul,  51  Pa.  134— §228,  n.  (22)   (k). 
Hays  v.  R.  R.,  195  Pa.  184— §228,  n.  (19)   (1). 
Hays  v.  Tryon,  2  Miles  208— §43,  n.  (2)  (e). 
Hazen  v.  Com.,  23  Pa.  355— §§34,  n.  (1) ;  46,  n.  (5)  (c) ;  n.  (6). 
Hazlett  v.  Bragdon,  7  Pa.  Super.  581— §228,  n.  (23)   (c). 
Headley  v.  Renner,  129  Pa.  542— §§186,  n.  (1)  (a) ;  228,  n.  (30)  (d). 
Heckert's  Ap.,  13  S.  &  R.  104— §§132,  n.  (2)  (d) ;  228,  n.  (30)  (o). 
Hector  Twp.  Road,  19  Pa.  Super.  120— §231,  n.  (1)  (a). 
Hedderson  v.  Hedderson,  35  Pa.  Super.  629 — §61,  n.  (2)  (a). 
Hedricks  v.  Township,  16  Pa.  Super.  508— §228,  n.  (23)  (b). 
Heffley  v.  Poorbaugh,  7  Sad.  49— §228,  n.  (20)   (a). 
Heffner  v.  Chambers,  121  Pa.  84— §228,  n.  (22)   (p),  (e2). 
Heh  v.  Gas  Co.,  201  Pa.  443— §228,  n.  (23)  (e),  (h). 
Heilbruner  v.  Wayte,  51  Pa.  259— §228,  n.  (19)  (b). 
Heilman  v.  McKinstry,  18  Pa.  Super.  70— §§126,  n.  (4)   (r) ;  228,  n. 

(13)  (j). 

Heilman  v.  R.  R.,  180  Pa.  627— §239,  n.  (2)  (s) ;  n.  (3)  (b). 
Heilner  v.  Tails  Co.,  9  Pa.  Super.  78— §228,  n.  (24)  (z3). 
Heister  v.  Laird,  1  W.  &  S.  245— §228,  n.  (20)  (h). 
Heitzenreither  v.  Bank,  4  Pa.  Super.  524— §228,  n.  (22)  (k). 
Helzer  v.  Helzer,  187  Pa.  243— §§186,  n.  (1)   (i) ;  228,  n.  (22)   (s) ;  n. 

(23)  (n). 

Hemphill  v.  McClimans,  24  Pa.  367— §228,  n.  (24)  (a2). 
Hendrick  v.  Hutchinson,  165  Pa.  208— §228,  n.  (20)  (g). 
Hennessy  v.  Anstock,  19  Pa.  Super.  644— §§183,  n.  (2)  (t) ;  185,  n. 

(2)  (a);n.  (3)  (a) ;  n.  (5)  (b). 

Henning  v.  Keiper,  43  Pa.  Super.  127— §240,  n.  (1)  (c). 
Henning  v.  Keiper,  37  Pa.  Super.  488— §196,  n.  (2)   (e). 
Henry  v.  Martin,  1  W.  N.  C.  277— §222,  n.  (1)  (i). 
Henry  v.  Heilman,  114  Pa.  499— §228,  n.  (3)  (c). 
Henry  v.  Klopper,  137  Pa.  178— §228,  n.  (20)   (i2). 
Henry  v.  Zurflieh,  203  Pa.  440— §228,  n.  (15)  (a). 

635 


Hen-Hoa  TABLE  OF  CASES. 


Hentzler  v.Weniger,  32  Pa.  Super.  164— §§185,  n.(l)  (j) ;  199,  n.(l)  (f). 

Henwood  v.  Cheeseman,  3  S.  &  R.  500— §228,  n.  (20)    (1). 

Hepburn's  Appeal,  65  Pa.  468— §228,  n.  (1)  (a) ;  n.  (17)  (a). 

Herbert  v.  Rainey,  162  Pa.  525— §228,  n.  (19)   (p). 

Herbst's  Ap.,  90  Pa.  357— §43,  n.  (6)   (d). 

Herdic  v.  Bilger,  47  Pa.  60— §228,  n.  (23)  (e). 

Herlehy  v.  Shrader,  20  Pa.  Super.  438— §§155,  n.  (1)  (a) ;  196,  n.  (1) 

(a). 

Hermann's  Est.,  226  Pa.  543— §288,  n.  (18)   (k). 
Herr  v.  Keemer,  1  Lane.  L.  Rev.  337— §239,  n.  (2)   (b). 
Herrick  Twp.  Road,  16  Pa.  Super.  579— §182,  n.  (4)   (e),  (k). 
Herrington's  Est.,  17  Pa.  Super.  530— §190,  n.  (12)   (f) ;  n.  (18)   (q) ; 

page  529,  Ap. 

Herrington  v.  Guernsey,  177  Pa.  175— §228,  n.  (21)   (h),    j). 
Hersbey  v.  Hershey,  8  S.  &  R.  333— §228,  n.  (20)  (c)  (e). 
Herstine  v.  R.  R.,  151  Pa.  244— §228,  n.  (19)  (p). 
Hess  v.  R.  R.,  181  Pa.  492— §228,  n.  (19)  (o). 
Hessel  v.  Fritz,  124  Pa.  229— §43,  n.  (5)   (a2) ;  n.  (7)  (1). 
Hessel  v.  Bradstreet  Co.,  141  Pa.  501— §189,  n.  (1)   (a). 
Heydrick  v.  Hutchison,  165  Pa.  208— §228,  n.  (21)   (h). 
Heyer  v.  Piano  Co.,  6  Pa.  Super.  504— §228,  n.  (20)  (a). 
Hickernell's  Appeal,  90  Pa.  328— §228,  n.  (24)  (z3). 
Hicks  v.  Harbison-Walker  Co.,  212  Pa.  437— §228,  n.  (26)   (b). 
Higgins  Carpet  Co.  v.  Latimer,  165  Pa.  617— §228,  n.  (24)  (b). 
High  v.  Berrett,  148  Pa.  261— §228,  n.  (20)  (i). 
Hilbish  v.  Cathermen,  60  Pa.  444— §71,  n.  (1)   (h). 
Hilborn  v.  Wilson,  17  Pa.  C.  C.  346— §59,  n.  (4)  (d). 
Hill  v.  Trust  Co.,  108  Pa.  1— §82,  n.  (3). 
Hill  v.  Egan,  160  Pa.  119— §§146,  n.  (2)   (b) ;  147,  n.  (4)   (d) ;  148,  n. 

(1)   (a);  155,  n.  (1)   (a);  161,  n.  (6)   (c). 
Hill  v.  Hill,  42  Pa.  198— §161,  n.  (5)  (q). 
Hill  v.  Canfield,  56  Pa,  454— §228,  n.  (22)  (c2) ;  n.  (23)  (h). 
Hill  v.  Meyers,  43  Pa.  170— §228,  n.  (26)   (a). 
Hill  v.  Newman,  38  Pa.  151— §43,  n.  (2)   (t). 
Hill  v.  Prescott,  31  L.  L  373— §228,  n.  (17)  (d). 
Hill  v.  Tionesta  Twp.,  129  Pa.  525— §228,  n.  (11)  (e). 
Hill  v.  West,  1  Bin.  486— §232,  n.  (1)   (b). 
Hilliard  v.  Supply  Co.,  224  Pa.  132— §44,  n.  (6)  (n). 
Hilliard  v.  Supply  Co.,  221  Pa.  503— §228,  n.  (24)  (i3). 
Hilskell  v.  Bank,  89  Pa.  155— §228,  n.  (22)  (e2). 

Himblewright  v.  Armstrong,  25  Pa.  428— §190,  n.  (12)  (c) ;  n.  (13)  (b). 
Himes  v.  Kiehl,  154  Pa.  190— §228,  n.  (19)  (m). 
Hineman  v.  Matthews,  138  Pa,  204— §228,  n.  (23)  (i). 
Hinnershitz  v.  Traction  Co.,  206  Pa.  91— §126,  n.  (3)   (e). 
Hirschlan  v.  Krechman,  20  Pa.  Super.  227— §74,  n.  (1)  (s). 
Hirsh's  Est.,  41  Pa.  Super.  367— §228,  n.  (18)  (k). 
Hise's  Est.,  5  Watts  157— §§43,  n.  (6)  (12) ;  229,  n.  (1)  (a). 
Hiyer  v.  Haywood,  14  Pa,  Super.  56— §242,  n.  (2)   (f). 
Hoag  v.  Knights  of  Friendship,  7  Pa.  Super.  425— §185,  n.  (1)   (a). 
Hoag  v.  R.  R.,  85  Pa.  293— §228,  n.  (23)  (c). 

636 


TABLE  OF  CASES.  Hoa-Hos 


Hoar  v.  Flegal,  1  Penny.  208— §228,  n.  (31)   (a). 

Hoar  v.  Leaman,  15  Atl.  716— §228,  n.  (26)  (a). 

Hobel  v.  Ry.,  229  Pa.  507— §187,  n.  (1),  (g). 

Hobson  v.  Croft,  9  Pa.  353— §228,  n.  (15)  (g). 

Hocker  v.  Jamison,  2  W.  &  S.  438— §§161,  n.  (5)  (i),  (w) ;  228,  n.  (21) 

(i). 

Hoff  v.  Hamilton,  28  Pa.  Super.  76— §190,  n.  (12)   (a),  (h). 
Hoff  a 's  Appeal,  82  Pa.  297— §228,  n.  (24)   (m4). 
Hoffa  v.  Person,  1  Pa.  Super.  357— §228,  n.  (11)  (e) ;  n.  (15)   (b). 
Hoffer  v.  Wightman,  5  Watts  205— §228,  n.  (11)  (e) ;  n.  (15)  (i). 
Hoffman's  Est.,  37  Pa.  Super.  548— §190,  n.  (12)  (a). 
Hoffman's  Est.,  12  Dist.  770— §239,  n.  (2)   (1). 
Hoffman  v.  R.  R.,  143  Pa.  503,  157  Pa.  174— §288,  n.  (31)   (f). 
Hoffman  v.  Clough,  124  Pa.  505— §228,  n.  (22)   (e). 
Hoffman  v.  Hafner,  211  Pa.  10— §243,  n.  (1)  (a),  (b) ;  n.  (3)  (e). 
Hogsett  v.  Iron  &  Steel  Co.,  15  Pa.  Super.  474— §§117,  n.  (6) ;  120,  n. 

(2)    (a). 

Hohenstein  v.  Perelstine,  37  Pa.  Super.  540— §228,  n.  (18)   (m). 
Holden  v.  Cole,  1  Pa.  303— §147,  n.  (4)   (b). 
Holden  v.  McMakin,  1  Pars.  270— §43,  n.  (3)   (a). 
Holden  v.  R.  R.,  169  Pa.  1— §§146,  n.  (2)  (d) ;  288,  n.  (16)  (b),  (d). 
Holden  v.  Winslow,  18  Pa.  160— §228,  n.  (23)  (i). 
Holland  v.  Kindregan,  155  Pa.  156— §228,  n.  (23)  (f). 
Holland  v.  White,  120  Pa.  228— §§182,  n.  (4)   (c) ;  228,  n.  (24)   (u). 
Holland  v.  Iron  Works,  9  Pa.  Super.  261— §50,  n.  (4)   (a). 
Hollander's  Ap.,  11  Pa.  Super.  23— §146,  n.  (2)  (c). 
Holliday  v.  Rheem,  18  Pa.  465— §228,  n.  (19)  (a) ;  n.  (20)  (h). 
Hollidaysburg  Seminary  v.  Gray,  45  Pa.  Super.  426— §228,  n.  (26)  (h). 
Hollinger  v.  Ry.,  225  Pa.  419— §228,  n.  (9)  (b) ;  n.  (20)  (h2) ;  n.  (29) 

(k). 

Holmes  v.  Traction  Co.,  199  Pa.  229— §228,  n.  (23)   (p). 
Holthouse  v.  Rynd,  155  Pa.  43— §187,  n.  (1)  (b). 
Holton  v.  Ry.,  138  Pa.  Ill— §185,  n.  (2)  (h). 
Hommel  v.  Lewis,  104  Pa.  456— §228,  n.  (22)   (a2). 
Hood  v.  Hood,  2  Grant  229— §288,  n.  (22)   (h),  (r) ;  n.  (25)   (a),  (n). 
Hoon  v.  Miller,  33  C.  C.  7— §167,  n.  (1)  (c). 
Hope  Hose  Co.'s  Ap.,  2  W.  N.  C.  451— §44,  n.  (6)  (o). 
Hopkins  v.  Com.,  50  Pa.  9— §§46,  n.  (7)  (a),  (b) ;  151,  n.  (2)  (e) ;  161, 

n.  (5)   (x). 

Hoopes  v.  Bradshaw,  231  Pa.  485— §33,  n.  (4)  (a). 
Hopper  v.  McMurray,  13  L.  I.  14— §228,  n.  (13)   (n). 
Hoppes  v.  Houtz,  133  Pa.  34— §§43,  n.  (3)   (q) ;  182,  n.  (4)   (h). 
Horn  Mfg.  Co.  v.  Steelman,  24  Pa.  Super.  126— §228,  n.  (7)  (c). 
Horn  v.  Hutchison,  163  Pa.  435— §228,  n.  (23)   (e),  (f). 
Horner  v.  Horner,  145  Pa.  258— §228,  n.  (24)   (z3). 
Horton  v.  Hall,  1  Penny.  159— §228,  n.  (20)  (a). 
Horton  v.  Miller,  44  Pa.  256— §182,  n.  (3)  (a). 
Horton  v.  Coal  Co.,  2  Penny.  43— §183,  n.  (4)   (j). 
Hortz's  Est.,  26  Pa.  Super.  489— §228,  n.  (18)   (1). 
Hosack  v.  Grill,  197  Pa.  370— §117,  n.  (2)  (d). 

637 


Hos-Hun  TABLE  OF  CASES. 


Hosie  v.  Gray,  73  Pa.  502— §§164,  n.  (2) ;  169,  n.  (2)  (b). 

Hosie  v.  Gray,  71  Pa.  198— §228,  n.  (26)  (h). 

Hoskinson  v.  Elliott,  62  Pa.  393— §232,  n.  (1)  (e). 

Hostetter's  Ap.,  92  Pa.  132— §43,  n.  (9)  (a). 

Hottenstein  v.  Johnson,  44  Pa,  Super.  562— §228,  n.  (15)  (a). 

Housekeeper's  Ap.,  49  Pa.  141— §§43,  n.  (5)  (o) ;  66,  n.  (4)  (a). 

Houser  v.  Kime,  42  Pa.  Super.  483— §146,  n.  (2)   (h). 

Houston  v.  Cook,  153  Pa.  43— §228,  n.  (20)  (a). 

Howard  v.  Murphy,  23  Pa,  173— §161,  n.  (5)  (o). 

Howell  v.  Mellon,  169  Pa.  138— §228,  n.  (21)   (h). 

Hower's  Ap.,  127  Pa.  134— §43,  n.  (6)   (m2). 

Hower  v.  Taggart,  2  Mona.  582— §228,  n.  (19)  (a). 

Hower  v.  Ulrich,  156  Pa.  410— §228,  n.  (20)   (h). 

Howser  v.  Com.  51  Pa.  332— §228,  n.  (24)  (p2). 

Hoy  v.  Ins.  Co.,  21  Montg.  77— §§163,  n.  (4)  (b) ;  167,  n.  (1)   (c). 

Hoyt  v.  Canal  Co.,  203  Pa.  509— §228,  n.  (18)  (g2). 

Huber  v.  Townsend,  34  L.  I.  178— §228,  n.  (26)  (a). 

Huber  v.  Wilson,  23  Pa.  178— §228,  n.  (19)  (a). 

Hubley  v.  Vanhorne,  7  S.  &  R.  185— §§183,  n.  (4)   (p) ;  228,  n.  (22) 

(o)    (w2). 
Huckestein  v.  Kelly,  139  Pa.  201— §§187,  n.  (1)  (b) ;  n.  (4)   (a) ;  228 

n.  (11)  (a);n.  (20)  (d). 

Huddleston  v.  Borough,  111  Pa.  110— §228,  n.  (22)  (b),  (e). 
Hudson  v.  Watson,  2  Pa.  Super.  422— §§187,  n.  (2)   (a),  (f ) ;  190,  n. 

(13)    (o);  228,  n.  (13)    (g) ;  n.  (19)   (i) ;  n.  (20)    (a),  (h) ;  n. 

(21)  (h);n.  (22)  (e). 

Huffman  v.  Mcllvaine,  13  Pa.  Super.  108— §228,  n.  (20)  (12),  (j2). 
Hufnagle  v.  Canal  Co.,  227  Pa.  476— §228,  n.  (22)  (a). 
Hughes 's  Ap.,  90  Pa.  60— §243,  n.  (3)  (d). 
Hughes  v.  Boyer,  9  Watts  556— §228,  n.  (22)  (k). 
Hughes  v.  Cooper,  42  Pa.  Super.  594— §§144,  n.  (2)   (a) ;  183,  n.  (5) 

(b). 
Hughes  v.  Miller,  192  Pa.  365— §§88,  n.  (4)  (a) ;  126,  n.  (3.)  (f) ;  228, 

n.  (3)  (e);n.  (5)  (a) ;  n.  (6)  (g),  (h). 
Hughes  v.  Peaslee,  50  Pa.  257— §43,  n.  (9)  (h). 
Hughes  v.  Williams,  17  Pa.  Super.  229— §239,  n.  (2)  (p). 
Hulherrin  v.  Railroad  Co.,  81  Pa.  366— §228,  n.  (20)  (h). 
Hulings  v.  Drexell,  7  Watts  126— §228,  n.  (23)  (e). 
Hull  v.  Hull,  14  Pa.  Super.  520— §228,  n.  (18)   (b2). 
Hull  v.  R.  R.,  1  Pa.  Super.  651— §228,  n.  (22)   (w). 
Humes  v.  McFarlane,  4  S.  &  R.  427— §228,  n.  (22)   (h). 
Hummell's  Case,  9  Watts  416— §182,  n.  (4)   (r2). 
Humphrey  v.  Tozier,  154  Pa.  410— §190,  n.  (12)   (1). 
Humphrey  v.  Cooper,  183  Pa.  432— §228,  n.  (20)  (x). 
Hunter  v.  Reilly,  36  Pa.  509— §146,  n.  (1)  (b). 
Hunter  v.  Bilheimer,  22  Pa.  Super.  622— §228,  n.  (18)  (h). 
Hunter  v.  R.  R.,  45  Pa.  Super.  468— §88,  n.  (1)   (a). 
Huntington,  etc.  R.  R.  v.  Fluke,  32  Pa.  Super.  126— §110,  n.  (2)  (a). 
Huntingdon,  etc.  R.  R.  v.  McGovern,  29  Pa.  78— §228,  n.  (13)  (a)- 
Huntingdon  etc.  R.  R.  v.  Decker,  82  Pa,  119— §228,  n.  (25)  (j). 

638 


TABLE  OF  CASES.  Hun-Jac 


Huntingdon  Line,  14  Pa.  Super.  576— §182,  n.  (4)    (v). 
Huntingdon  County  Line,  11  Pa.  Super.  386— §228,  n.  (24)  (z3). 
Huntingdon  Co.  v.  Mason,  21  Pa.  Super.  148— §§43,  n.  (3)   (y) ;  54,  n. 

(2)   (b). 

Huston  Twp.  Ins.  Co.  v.  Beale,  110  Pa.  321— §182,  n.  (2)  (d2). 
Huston  v.  Clark,  173  Pa.  361— §239,  n.  (3)   (c) ;  (4)  (c). 
Huston  v.  Barstow,  19  Pa.  169— §228,  n.  (20)  (c) ;  n.  (23)  (h). 
Huston  Ins.  Co.  v.  Beale,  110  Pa.  321— §288,  n.  (24)   (a4). 
Hutehinson  v.  Ledlie,  36  Pa.  112— §228,  n.  (24)  (z3). 
Hutchinson  v.  Campbell,  25  Pa.  156— §186,  n.  (1)   (a). 
Hutchison  v.  Com.,  82  Pa.  472— §§46,  n.  (11)  (a) ;  151,  n.  (2)  (b). 
Hutchinson  v.  Twp.,  14  Pa.  Super.  546— §48,  n.  (5)   (d). 
Hutton  v.  McLaughlin,  1  Pa.  Super.  642— §§146,  n.  (1)  (b) ;  197,  n.  (1) 

(d). 

Hyatt  v.  Johnston,  91  Pa.  196— §228,  n.  (23)    (e). 
Hyndman  v.  Hogsett,  111  Pa.  643— §§190,  n.  (12)    (1) ;  228,  n.  (18) 

(s2). 
Hyndman  Water  Co.  v.  Hyndman  Boro.,  7  Pa.  Super.  191 — §228,  n. 

(24)   (a2). 
Hyslop  v.  Crozier,  1  Miles  267— §228,  n.  (20)   (12). 

Independence  Party  Nomination,  213  Pa.  64— §182,  n.  (4)  (f). 
Indian  Brew.  Co.'s  License,  226  Pa.  56— §228,  n.  (3)   (i). 
Ingraham  v.  Caricabura,  5  Pa.  177 — §48,  n.  (1)  (a2). 
Ingram  v.  Grangers,  33  Pa.  Super.  316— §§182,  n.   (4)    (h) ;  228,  n. 

(24)    (x). 

Inman  v.  Kutz,  10  Watts  90— §228,  n.  (18)   (b). 
International  Coal  Mining  Co.  v.  R.  R.  214  Pa.  469— §43,  n.  (2)  (1). 
International  S.  &  T.  Co.  v.  Kleter,  29  Pa.  Super.  200— §196,  n.  (2) 

(e),  (d). 
International  Trust  Co.  v.  Printz,  37  Pa,  Super.  134— §§88,  n.  (1)  (a) ; 

183,  n.  (4)    (a). 
International  Trust  Co.  v.  Kleter,  29  Pa.  Super.  200— §183,  n.  (2)  (a), 

(b). 

Irish  v.  Smith,  8  S.  &  R.  573— §228,  n.  (22)   (k) ;  n.  (24)  (a2). 
Irvin  v.  Kutruff,  152  Pa.  609— §§183,  n.  (2)   (a);  n.  (4)   (j);  185,  n. 

(3)  (a);  186,  n.  (1)  (c). 

Irwin's  Ap.,  7  Pa.  Super.  354— §43,  n.  (3)   (b2)  . 
Irwin's  Ap..  5  Whar.  577— §228,  n.  (11)  (a). 
Irwin  v.  Gallagher,  8  S.  &  R.  528— §146.  n.  (2)  (g). 
Irwin  v.  Hawthorn,  6  Pa.  Super.  165— §192,  n.  (2)   (a). 
Irwin  v.  Trego,  22  Pa.  368— §228.  n.  (26)   (a). 
Irwin  v.  Irwin,  142  Pa.  271— §228,  n.  (23)  (h). 
Isett  v.  Caldwell,  101  Pa.  32— §228,  n.  (4)  (i). 

Jack  v.  Twyford,  10  Pa.  Super.  475— §§41,  n.  (1)  (c) ;  183,  n.  (5)  (b). 

Jackson  v.  Litch.  62  Pa.  451— §228,  n.  (24)   (b2). 

Jackson  v.  R.  R..  228  Pa.  566— §228,  n.  (20)  (i) ;  Id.,  (22)  (d2). 

Jackson  v.  Thompson,  203  Pa.  622— §228,  n.  (30)  (i). 

Jacobs 's  Ap.,  107  Pa.  137— §228,  n.  (18)  (q). 

639 


Jac-Jon  TABLE  OF  CASES. 


Jacoby  v.  Ins.  Co.,  10  Pa.  Super.  366— §§228.  n.   (22)    (n) ;  242,  n. 

(2)   (e). 

Jacques  v.  Fourthman,  137  Pa.  428 — §82,  n.  (3). 
Jaffe  v.  Cooperman,  231  Pa.  219— §228,  n.  (24)  (z3). 
Jaffray  v.  Frothingham,  148  Pa.  213— §228,  n.  (20)  (a),  (j). 
James  v.  Weir,  213  Pa.  135— §150,  n.  (1)    (d). 
James's  Ap.,  116  Pa.  152— §85,  n.  (1)   (b). 
Jameison  v.  Pomeroy,  9  Pa.  230— §228,  n.  (1)   (j);  n.  (2)   (i) ;  n.  (4) 

(P),  (s). 

Jamison  v.  Collins,  83  Pa.  359— §228,  n.  (18)   (t). 
Janes 's  Ap.,  87  Pa.  428— §239,  n.  (3)   (d). 
Janney  v.  Howard,  150  Pa.  339— §§147,  n.  (4)   (c) ;  161,  n.  (1)    (b) ; 

183,  n.  (6)    (b). 

Jarrett  v.  Tomlinson,  3  W.  &  S.  114— §43,  n.  (2)   (a2). 
Jay  v.  Amanter,  43  Pa.  Super.  529— §228,  n.  (24)   (z3). 
Jeannette  Mills  v.  Greenwalt,  11  Pa.  Super.  157— §228,  n.   (2)    (h) ; 

n.  (29)   (b). 
Jefferson  Twp.  Road,  3  Pa.  Super.  467— §§183,  n.  (4)  (a) ;  228,  n.  (1) 

(a);  231,  n.  (1)   (a). 

Jenkins  v.  McMichael,  17  Pa.  Super.  376— §228,  n.  (14)  (a). 
Jenkinson  Co.  v.  Eggers,  28  Pa.  Super.  151— §§187,  n.  (2)   (a),  (d) ; 

198,  n.  (3)   (a). 

Jenkintown  National  Bank's  Ap.,  124  Pa.  337— §74,  n.  (1)   (s). 
Jenning's  Est.,  38  Pa.  Super.  522— §§45,  n.  (3)  (m) ;  190,  n.  (13)   (p). 
Jenning's  Est.,  195  Pa.  406— §§111,  n.  (1)   (a) ;  117,  n.  (4)   (b). 
Jensen  v.  Ry.  Co.,  24  Pa.  Super.  4— §228,  n.  (20)   (h) ;  n.  (22)   (g). 
Jessop  v.  Boro.,  225  Pa,  503— §§43,  n.  (6)  (j) ;  44,  n.  (3) ;  page  537  Ap. 
Johns  v.  Batton,  30  Pa.  84— §228,  n.  (25)   (a). 
Johns  v.  Erb,  5  Pa.  232— §48,  n.  (1)   (a2). 
Johnson's  Ap.,  9  Pa.  416— §228,  n.  (11)   (a). 
Johnson's  Est.,  29  Pa.  Super.  255— §228,  n.  (15)  (a). 
Johnson's  License,  165  Pa.  315— §38,  n.  (1)   (i). 
Johnson  v.  Carver,  175  Pa.  200— §228,  n.  (30)   (e). 
Johnson  v.  Com.,  115  Pa.  369— §§46,  n.  (5)   (d) ;  151,  n.  (2)  (e) ;  161, 

n.  (6)  (a). 

Johnson  v.  Com.,  24  Pa.  386— §230,  n.  (1)  (g). 
Johnson  v.  Ins.  Co.,  218  Pa.  421— §228,  n.  (20)  (r). 
Johnston's  Est.,  222  Pa.  514— §§183,  n.  (3)  (f) ;  185,  n.  (1)  (r) ;  186, 

n.  (1)  (b);  n.  (2). 

Johnston  v.  Com.,  85  Pa.  54— §228,  n.  (21)  (a) ;  n.  (22)  (o). 
Johnston  v.  Gray,  16  S.  &  R.  361— §228,  n.  (20)  (q2). 
Johnstone  v.  Menagh,  4  Pa.  Super.  154— §§43,  n.  (3)  (q) ;  228,  n.  (24) 

(*). 

Jones's  Ap.,  99  Pa.  124— §§45,  n.  (3)   (h) ;  228,  n.  (29)  (h). 

Jones's  Ap.,  1  Walk.  355— §74,  n.  (1)   (e). 

Jones  v.  Aronson,  45  Pa.  Super.  148 — §185,  n.  (3)   (a). 

Jones  v.  Backus,  3  Lane.  L.  Rev.  413 — §132,  n.  (1)   (c). 

Jones  v.  Cleveland,  6  Pa.  Super.  640— §228,  n.  (21)   (h). 

Jones  v.  Coal  Co.,  227  Pa.  509— §§43,  n.  (2)   (c2) ;  126,  n.  (1)   (e). 

Jones  v.  Com.,  75  Pa.  403— §230,  n.  (1)   (a). 

640 


TABLE  OF  CASES.  Jon-Kee 


Jones  v.  Dilworth,  63  Pa.  447— §183,  n.  (4)   (a);  228,  n.  (24)   (z3). 

Jones  v.  Freyer,  3  W.  N.  C.  365— §232,  n.  (1)  (n). 

Jones  v.  Greenfield,  25  Pa.  Super.  315— §228,  n.  (22)  (q). 

Jones  v.  Hartley,  3  Whar.  178— §228,  n.  (13)  (b). 

Jones  v.  Harvey,  9  Pa.  Super.  326— §228,  n.  (15)  (a) ;  n.  (18)  (j). 

Jones  v.  Hughes,  16  Atl.  849— §228,  n.  (20)   (a2). 

Jones  v.  Ins.  Co.,  1  Bin.  38— §161,  n.  (6)   (b). 

Jones  v.  Jones,  37  Pa.  Super.  442 — §228,  n.  (24)   (y2). 

Jones  v.  Kroll,  116  Pa.  85— §228,  n.  (25)  (a). 

Jones  v.  Matheis,  17  Pa.  Super.  220— §196,  n.  (2)    (a) ;  228,  n.  (19) 

(a),  (d). 

Jones  v.  Pierce,  134  Pa.  533— §228,  n.  (23)   (e). 
Jones  v.  Weir,  217  Pa.  135— §§11,  n.  (4)    (c) ;  183,  n.  (5)    (a),  (d) ; 

185,  n.   (2)    (a);  n.  (3)    (a);  228,  n.   (18)    (g),  (m),   (h2) ;  n. 

(23)    (e). 

Jordan's  Ap.,  107  Pa.  75—  §43,  n.  (5)   (d) ;  n.  (6)  (d). 
Joseph  v.  Richardson,  2  Pa.  Super.  208— §228,  n.  (4)   (i). 
Joyce  v.  Lynch,  17  W.  N.  C.  79— §190,  n.  (12)   (b),  (c). 
Judge's  Commission,  2  Chester  Co.  317 — §4,  n.  (1). 
Jugsmith  v.  Rosenblatt,  15  Pa.  Super.  296— §228,  n.  (24)  (z3). 
Junior  Engine  Co.  v.  Douglas,  2  Penny.  63— §228,  n.  (23)  (e). 
Jutte  v.  Conley,  4  Penny.  90— §43,  n.  (3)   (q). 

Karl  v.  Juniata  Co.,  206  Pa.  633— §§186,  n.  (1)  (c) ;  228,  n.  (19)  (a) ; 

n.  (20)   (a),  (w2);n.  (22)   (n). 
Kase  v.  Burnham,  206  Pa.  330— §185,  n.  (3)   (a). 
Katharine  Water  Co.,  32  Pa.  Super.  94— §§42,  n.  (3) ;  48,  n.  (4) ;  182, 

n.  (4)  (a),  (n);228,n.  (24)  (g3). 
Kaufhold  v.  Arnold,  163  Pa.  269— §228,  n.  (21)   (h). 
Kaufman  v.  Abeles,  11  Pa.  Super.  616— §82,  n.  (3). 
Kaufman  v.  R.  R.,  210  Pa.  440— §§183,  n.  (4)    (e) ;  185,  n.  (1)    (b) ; 

187,  n.  (2)   (b);  228,  n.  (19)   (a). 
Kauffman  v.  Hirsch,  9  W.  N.  C.  347— §164,  n.  (2). 
Kean  v.  Franklin,  5  S.  &  R.  147— §228,  n.  (22)   (e2). 
Kean  v.  McLaughlin,  2  S.  &  R.  469— §228,  n.-(19)  (a). 
Kearney  v.  McCullough,  5  Bin.  389— §7,  n.  (2). 

Kaier  Co.  v.  O'Brien,  202  Pa.  153— §§74,  n.  (1)  (s) ;  228,  n.  (24)  (z3). 
Kaiser  v.  Flaccus,  138  Pa.  332— §228,  n.  (22)   (k). 
Kalbach  v.  Fisher,  1  Rawle  323— §228,  n.  (24)   (z3). 
Kalin  v.  Wehrle,  36  Pa.  Super.  305— §228,  n.  (19)   (a) ;  n.  (24)   (m) ; 

187,  n.  (1)  (b),  (g);198,  n.  (2). 

Kames  v.  Thomas,  1  W.  N.  C.  189— §228,  n.  (18)   (b). 
Keating  v.  Orne,  77  Pa.  89— §228,  n.  (22)  (k). 
Keating  v.  Ry.  Co.,  5  W.  N.  C.  232— §242,  n.  (3)  (c). 
Kedward  v.  Campbell,  166  Pa.  365— §228,  n.  (18)   (q). 
Keefer  v.  Mellott,  44  Pa.  Super.  471— §228,  n.  (24)   (z). 
Keefer  v.  Pacific  Ins.  Co.,  201  Pa.  448— §88,  n.  (1). 
Keeler  v.  Schott,  1  Pa.  Super.  458— §228,  n.  (22)  (n). 
Keeler  v.  Vantuyle,  6  Pa.  250— §228,  n.  (20)   (d),  (h). 
Keemer  v.  Herr,  2  Penny.  175— §§43,  n.  (3)  (v) ;  77,  n.  (2)   (c). 

641 
41 


Kee-Kie  TABLE  OF  CASES. 


Kehoe  v.  Traction  Co.,  187— §228,  n.  (19)  (a) ;  n.  (22)  (u2). 

Keil  v.  Gas  Co.,  131  Pa.  466— §228,  n.  (20)   (g),  (p). 

Keighly  v.  Directors,  7  Pitts.  L.  J.  188— §51,  n.  (4)   (a). 

Keim's  Ap.,  27  Pa.  42— §§126,  n.  (1)  (c) ;  n.  (4)  (f) ;  228,  n.  (24)  (r2). 

Keiser  v.  Eberly,  226  Pa.  21— §228,  n.  (24)  (12). 

Kelber  v.  Plow  Co.,  146  Pa.  485— §§74,  n.  (1)    (j),  (s) ;  228,  n.  (24) 

(z3),  (a4). 

Kelchner  v.  Borough,  209  Pa.  412— §228,  n.  (19)  (j),  (k),  (1). 
Keller's  Private  Eoad,  154  Pa,  547— §§182,  n.   (4)    (d)  j  183,  n.   (4) 

(a);  231,  n.  (1)  (a). 

Keller  v.  Nutz,  5  S.  &  R.  246— §228,  n.  (15)  (a). 
Kelly's  Case,  200  Pa.  430— §41,  n.  (1)  (b). 
Kelly's  Case,  17  Pa.  Super.  344— §228,  n.  (24)   (e4). 
Kelly's  Impeachment,  17  Pa.  Super.  344— §182,  n.  (4)   (h2). 
Kelly  v.  Bennett,  132  Pa.  218— §§82,  n.  (1)  (a) ;  185  n.  (3)  (a) ;  228, 

n.  (24)    (12). 

Kelly  v.  Cover,  1  W.  N.  C.  467— §228,  n.  (24)   (J4). 
Kelly  v.  Eby,  141  Pa.  176— §228,  n.  (20)  (c),  (d). 
Kelley  v.  Kelley,  182  Pa.  131— §228,  n.  (13)  (h) ;  n.  (30)  (c). 
Kelly  v.  McGehee,  137  Pa.  443— §228,  n.  (23)   (h). 
Kelly  v.  Traction  Co.,  204  Pa.  623— §228,  n.  (15)   (b) ;  n.  (18)   (b). 
Kelly  v.  Shay,  206  Pa.  215— §228,  n.  (18)  (m). 
Kelso's  Ap.,  102  Pa.  7— §239,  n.  (3)  (a). 
Kelton  v.  Fife,  26  Pa.  Super.  603— §228,  n.  (23)  (h). 
Kemmerer  Iron  Co.  v.  Bittenbender,  231  Pa.  154— §228,  n.  (18)   (u). 
Kemmerer  v.  Tool,  81  Pa.  467— §185,  n.  (2)  (b). 
Kemmerer  v.  Young,  5  Rawle  175— §228,  n.  (8)   (r). 
Kemmerer  v.  Edelman,  23  Pa.  143— §228,  n.  (25)   (e). 
Kendig's  Appeal,  82  Pa.  68— §228,  n.  (24)   (f)   (v2) 
Kendrick  v.  Overstreet,  3  S.  &  R.  357— §43,  n.  (3)  (k). 
Kennedy  v.  Erdman,  150  Pa.  427— §187,  n.  (1)  (h). 
Kennedy  v.  Daily,  6  Watts  269— §147,  n.  (3)    (a). 
Kennedy  v.  Oil  Co.,  199  Pa.  644— §228,  n.  (1)    (c) ;  n.  (25)    (a) ;  n. 

(30)   (f). 
Kenworthy  v.  Trust  Co.,  218  Pa.  286— §§44,  n.  (3) ;  n.  (6)    (x) ;  150, 

n.  (2)   (a);  183,  n.  (2)  (s) ;  184,  n.  (2). 
Kepler  v.  Lumber  Co.,  209  Pa.  244— §228,  n.  (18)   (c). 
Kepner's  Appeal,  94  Pa.  74— §228,  n.  (24)   (r2). 
Kern's  Est.,  18  Pa.  Super.  506— §§43,  n.  (6)   (k2) ;  228,  n.  (18)   (q). 
Kerr  v.  0 'Conner,  63  Pa.  341— §183,  n.  (4)  (n). 
Kerr  v.  Wonderlich,  7  Sad.  1— §74,  n.  (1)    (e). 
Kershner  v.  Kemmerling,  24  Pa.  Super.  181 — §155,  n.  (1)  (k). 
Kessler  v.  Perrong,  22  Pa.  Super.  578— §50,  n.  (4)   (c). 
Keystone  Brew.  Co.  v.  Canavan,  218  Pa.  161— §43,  n.  (3)   (u2). 
Keystone  Cycle  Co.  v.  Jones,  12  Pa.  Super.  134— §§187,  n.  (2)   (b) ; 

228,  n.  (25)  (a). 

Kidder  E.  I.  Co.  v.  Muckle,  198  Pa.  388— §50,  n.  (4)  (a). 
Kidder  v.  Boom  Co.,  24  Pa.  193— §228,  n.  (23)   (e). 
Kiehl  v.  Com.,  18  W.  N.  C.  505— §§161,  n.  (5)   (f ),  (p) ;  228.  n.  (1) 

(c). 

642 


TABLE  OF  CASES.  Kil-Kni 


Kille  v.  Edge,  79  Pa.  15— §§161,  n.  (5)   (p) ;  228,  n.  (17)   (d). 

Kille  v.  Iron  Works,  134  Pa.  225— §93,  n.  (1),  (2). 

Killion  v.  Power,  51  Pa.  429— §228,  n.  (22)  (k). 

Kimber  v.  County,  20  Pa.  366— §182,  n.  (4)  (a). 

Kimelewski  v.  Com.,  39  Pa.  Super.  308— §228,  n.  (1)  (b) ;  n.  (17)  (d). 

Kimmel 's  Ap.,  2  W.  N.  C.  138— §228,  n.  (24)   (r2). 

Kimmel  v.  Johnson,  18  Pa.  Super.  429— §§43,  n.  (1)   (h) ;  n.  (7)   (s) ; 

66,  n.  (2)  (d) ;  n.  (5) ;  n.  (6)  (b) ;  126,  n.  (5)   (a). 
Kimmel  v.  Shaffer,  213  Pa.  375— §228,  n.  (27)   (i). 
King  v.  King,  36  Pa.  Super.  33— §§61,  n.  (2)   (c) ;  228,  n.  (18)   (b2). 
King  v.  Brick  Co.,  30  Pa.  Super.  582— §43,  n.   (7)    (k). 
King  v.  McKinstry,  32  Pa.  Super.  34— §228,  n.  (4)  (f). 
King  v.  Thompson,  87  Pa.  365— §228,  n.  (20)  (h) ;  n.  (22)  (n2). 
Kinley  v.  Hill,  4  W.  &  S.  426— §228,  n.  (22)  (h2). 
Kinney's  Case,  39  Pa.  Super.  195— §228,  n.  (18)   (g). 
Kinney  v.  Burnham,  23  Pa.  Super.  583— §§147,  n.   (4)    (e) ;  161,  n. 

(3)  (t);183,  n.  (4)  (a). 

Kirchner  v.  Smith,  207  Pa.  431— §232,  n.  (1)  (p). 
Kirk  v.  Eaton,  10  S.  &  R.  103— §243,  n.  (2)  (d). 
Kirkpatrick  v.  Lex,  49  Pa.  122— §161,  n.  (7)   (d). 
Kirkpatrick  v.  Vanhorn,  32  Pa.  131— §228,  n.  (23)   (e). 
Kirsch's  License,  46  Pa.  Super.  332— §182,  n.  (4)   (j). 
Kiser  v.  Vanleer,  2  W.  N.  C.  561— §228,  n.  (1)  (b) ;  n.  (17)  (a),  (d) ; 

n.  (27)   (b). 

Kiskiminitas  Twp.  Rd.,  32  Pa.  9— §43,  n.  (3)   (b2). 
Kissinger  v.  Thompson,  12  S.  &  R.  44— §228,n  .  (20)  (h). 
Kistler  v.  Sheirer,  10  Pa.  Super.  220— §74,  n.  (1)  (s). 
Kitchen  v.  McClosky,  150  Pa.  376— §§183,  n.  (2)  (s) ;  185,  n.  (2)  (g). 
Kitler  v.  Ry.,  27  Pa.  Super.  602— §228,  n.  (23)   (h). 
Kittanning  Twp.  v.  Madison  Twp.,  146  Pa.  108— §§85,  n.  (1)   (a) ;  n. 

(2)  (e);228,  n.  (23)  (e). 

Kittanning  Ins.  Co.'s  Ap.,  13  W.  N.  C.  54— §182,  n.  (2)   (n). 
Kittanning  Ins.  Co.  v.  Scott,  101  Pa.  449— §182,  n.  (2)   (n). 
Kittera's  Est.,  17  Pa.  416— §229,  n.  (1)   (b). 
Klein's  Ap.,  11  "W.  N.  C.  449— §182,  n.  (2)   (a),  (e). 
Klein  v.  Ins.  Co.,  13  Pa.  247— §228,n.  (24)  (p2). 
Klett  v.  Claridge,  31  Pa.  106— §228,  n.  (8)   (n). 
Kline  v.  Guthart,  2  P.  &  W.  490— §§43,  n.  (9)  (i) ;  51,  n.  (3) ;  228,  n. 

(24)   (m3). 
Klingensmith  v.  Steel  Co.,  17  Pa.  Super.  210— §§43,  n.  (9)   (h) ;  51,  n. 

(2)  (a). 

Klipstein  v.  Whitesides,  30  Pa.  Super.  35— §288,  n.  (18)   (w). 

Klugh  v.  R.  R.,  29  Pa.  Super.  583— §43,  n.  (3)   (b3). 

Knapp  v.  Griffin,  140  Pa.  604— §228,  n.  (20)   (a). 

Knebel  v.  Baumgarden,  1  Schuyl.  Leg.  Rev.  137— §§43,  n.  (1)   (b) ;  n. 

(3)  (y2);  67,  n.  (1)    (e). 

Knee  v.  McDowell,  25  Pa.  Super.  641— §228,  n.  (21)  (a). 
Kneedler's  Appeal,  92  Pa.  428— §228,  n.  (24)  (z3). 
Knerr  v.  Hoffman,  65  Pa.  126— §228,  n.  (22)   (q2). 
Knicherbacher  Ins.  Co.  v.  Gorbach,  70  Pa.  150— §228,  n.  (18)  (g). 

643 


Kni-Lam  TABLE  OF  CASES. 


Knights  v.  Leadbeter,  2  Pa.  Super.  461— §186,  n.  (1)   (c). 

Knoblauch's  License,  28  Pa.  Super.  323— §228,  n.  (24)   (s3). 

Knowles  v.  Jacobs,  4  Pa.  Super.  268— §228,  n.  (24)   (q3),  (r3). 

Koch's  Est.,  4  Rawle  268— §43,  n.  (5)   (i). 

Koch  v.  Bieseeker,  7  Pa.  Super.  37 — §74,  n.  (1)  (s). 

Koons  v.  Steele,  19  Pa.  203— §228,  n.  (23)   (c). 

Kraemer  v.  Trust  Co.,  173  Pa.  416— §121,  n.  (2)   (c). 

Kraft's  Ap.,  94  Pa.  449— §§34,  n.  (1) ;  71,  n.  (2). 

Kraft  v.  Smith,  117  Pa.  183— §228,  n.  (22)   (e). 

Kraft  v.  Gilchrist,  31  Pa,  470— §228,  n.  (12)   (i). 

Kramer  v.  Reed,  7  Sad.  613— §228,  n.  (22)   (f2). 

Kramer  v.  Winslow.  154  Pa.  637— §§187,  n.  (1)  (b) ;  228,  n.  (22)   (k). 

Krause  v.  Com.,  93  Pa.  418— §228,  n.  (23)  (c). 

Kraut  v.  Fox,  1  W.  N.  C.  401— §239,  n.  (2)   (b). 

Kreiner  v.  R.  R.,  135  Pa.  184— §187,  n.  (2)  (i). 

Krepps  v.  Mitchell,  156  Pa.  320— §243,  n.  (1)   (b). 

Krepps  v.  Carlisle,  157  Pa.  358— §228,  n.  (20)   (k),  (r). 

Kucklaum's  Election,  221  Pa.  521— §§146,  n.  (1) ;  182,  n.  (4)  (f). 

Krider  v.  Lafferty,  1  Whar.  303— §183,  n.  (4)    (o). 

Krider  v.  Hartzell,  40  Pa.  Super.  186— §190,  n.  (13)  (t). 

Krings  v.  Krings,  43  Pa.  Super.  590— §228,  n.  (18)   (m). 

Krodel's  Est.,  14  Dist.  417— §168,  n.  (2)  (b). 

Kroegher  v.  McConway  Torley  Co.,  149  Pa.  444— §§228,  n.  (22)   (a), 

(a2);232,n.  (1)  (p). 

Krumbharr  v.  Griffiths,  151  Pa.  223— §228,  n.  (18)   (z). 
Kuhler  v.  Hoover,  4  Pa.  331— §43,  n.  (5)   (s). 
Kuntz's  Est.,  230  Pa.  557— §175,  n.  (1). 

Kuntz  v.  Railroad,  206  Pa.  162— §228,  n.  (15)  (a) ;  n.  (20)  (r). 
Kupp  v.  Rummel,  199  Pa.  90— §190,  n.  (13)   (s). 
Kurrie  v.  Cottingham,  209  Pa.  12— §§43,  n.  (3)   (v) ;  78,  n.  (2)   (d). 
Kurtz  v.  Haines,  2  Mona.  328— §185,  n.  (3)  (a) ;  228,  n.  (19)   (a). 
Kutz's  Ap.,  4  Pa.  Super.  292— §182,  n.  (4)   (n2). 
Kyle  v.  Power  Co.,  174  Pa.  570— §228,  n.  (20)    (a). 
Kyler  v.  Christman,  25  Pa.  Super.  74— §§50,  n.  (6)    (a) ;  228,  n.  (6) 

(n). 

Ladley  v.  Express  Co.,  3  Pa.  Super.  149— §185,  n.  (1)  (e). 

Lafferty 's  Est.,  19  C.  C.  613— §169,  n.  (2)   (c). 

Lafferty 's  Est.,  184  Pa.  502— §228,  n.  (18)  (h). 

Lafferty  v.  Corcoran,  175  Pa.  5— §§43,  n.  (3)  (q) ;  182,  n.  (4)  (h). 

Lafferty  v.  Lafferty,  174  Pa.  536— §49,  n.  (2)  (a). 

La  Fitte  v.  La  Fitte,  2  S.  &  R.  107— §132,  n.  (1)   (c). 

Laird's  Ap.,  2  Pa.  Super.  300— §182,  n.  (1)   (b) :  n.  (4)   (n2) :  228,  n. 

(24)   (m4). 

Laird  v.  Walkinshaw,  15  Atl.  898— §192,  n.  (2)   (q). 
Laird  v.  Campbell,  100  Pa.  159— §228,  n.  (25)   (t). 
Laird  v.  McCarter,  2  W.  N.  C.  213— §228,  n.  (24)   (m4). 
Lake  Erie  Limestone  Co.'s  Petition,  188  Pa.  509— §126,  n.  (6)  (c). 
Lamb's  Ap.,  89  Pa.  407— §74,  n.  (1)    (e). 
Lamb  v.  Leader,  6  Pa.  Super.  50 — §186,  n.   (1)    (a). 

644 


TABLE  OF  CASES.  Lam-Lee 


Lamb  v.  Prettyman,  33  Pa.  Super.  190— §228,  n.  (23)   (g). 

Lamoreux  v.  County,  116  Pa.  195— §§48,  n.  (5)  (c) ;  97,  n.  (2). 

Lancaster  v.  De  Normandie,  1  Wliar.  49— §147,  n.  (4)  (b). 

Lancaster  County  Bank  v.  Stauffer,  10  Pa.  398— §48,  n.  (1)   (d2). 

Lancaster  Plate  Co.  v.  Ins.  Co.,  170  Pa.  151— §228,  n.  (19)   (a)- 

Lancaster  Co.  Bank  v.  Albright,  21  Pa.  228— §228,  n.  (22)   (p2). 

Lancaster  County  Bank  v.  Henning,  171  Pa.  399— §228,  n.  (24)  (d). 

Lancaster  County  Bank  v.  Stauffer,  10  Pa.  398— §228,  n.  (24)  (k3). 

Lancaster  v.  Flowers,  208  Pa.  199— §228,  n.  (18)  (s). 

Lance  v.  Bonnell,  105  Pa.  46— §228,  n.  (24)   (e). 

Land's  Ap.,  1  Mona.  755— §182,  n.  (2)   (a2). 

Land  Title  &  Tr.  Co.  v.  Fulmer,  24  Pa.  Super.  260— §183,  n.  (4)  (a). 

Landis  v.  Evans,  13  Pa.  332— §183,  n.  (2)   (a). 

Landis  v.  Maher,  1  W.  N.  C.  407— §§183,  n.  (5)  (a) ;  228,  n.  (24)  (z3). 

Lane  v.  Sand  Co.,  172  Pa.  252— §146,  n.  (1)   (b). 

Lane  v.  Smith,  103  Pa.  410— §228,  n.  (15)  (a). 

Langer  v.  Parish,  8  S.  &  R.  134— §228,  n.  (8)  (q) ;  n.  (13)  (r). 

Laning  v.  Darling,  209  Pa.  254— §228,  n.  (18)   (i). 

Lantz  v.  Frey,  19  Pa.  366— §228,  n.  (2)  (g). 

La  Plume  Borough,  18  W.  N.  C.  82— §§190,  n.  (11)    (a) ;  194,  n.  (1) 

(a). 

Laporte  Boro.  Overseers  v.  Overseers,  95  Pa.  269 — §85,  n.  (1)  (a). 
Lappe  v.  Gfeller,  211  Pa.  462— §228,  n.  (21)   (a). 
Larzelere,  v.  Tiel,  3  Pa.  Super.  109— §228,  n.  (20)  (b),  (g) ;  n.  (21)  (h). 
Lasher  v.  Medical  Co.,  3  Pa,  Super.  571— §228,  n.  (18)   (g). 
Lasher  v.  Press  Co.,  203  Pa.  313— §228,  n.  (18)   (h). 
Latshaw  v.  Steinman,  11  S.  &  R.  357— §228,  n.  (24)   (f). 
Laubach  v.  Laubach,  73  Pa.  387— §228,  n.  (11)  (h). 
Lauck's  Application,  2  Pa.  Super.  53— §228,  n.  (24)   (r2),  (s3),  (t3). 
Lauer  v.  Brewing  Co.,  120  Pa.  593— §44,  n.  (6)   (r). 
Lauer  v.  Yetzer,  3  Pa.  Super.  461— §§183,  n.  (4)  (e) ;  228  n.  (19)  (a). 
Lauer  Brew.  Co.  v.  Chmielewski  206  Pa.  90— §228,  n.  (15)    (a). 
Laughlin  v.  Peebles,  1  P.  &  W.  114— §43,  n.  (9)   (1). 
Lautner  v.  Kann,  184  Pa.  334— §228,  n.  (20)   (i),  (m). 
•Lawrence's  Ap.,  67  Pa.  87— §43,  n.  (6)  (o). 

Lazarus  v.  Morris,  17  Dist.  804— §§103,  n.  (3)   (j) ;  174,  n.  (2)  (b). 
Lazzari  v.  R.  R.,  28  Pa.  Super.  175— §228,  n.  (18)  (b). 
Lea  v.  Hopkins,  7  Pa.  492— §§228,  n.  (19)  (a) ;  235,  n.  (1)   (c). 
Leach  v.  Ansbacher,  28  L.  I.  277— §§88,  n.  (2) ;  228,  n.  (7)  (a),  (d). 
Leader  v.  Dunlap,  6  Pa.  Super.  243— §§74  n.  (1)  (s) ;  228,  n.  (24)  (z3). 
Leary  v.  Traction  Co.,  180  Pa.  136— §228,  n.  (19)  (a). 
Lebanon  Ins.  Co.  v.  Erb.,  1  Sad.  181— §225,  n.  (3). 
Lebanon  Ins.  Co.  v.  Losch,  109  Pa.  100— §228,  n.  19  (a) ;  n.  (22)  (e2). 
Lebanon  Water  Co.,  4  Dauph.  228— §58,  n.  (4)   (b). 
LeBarron  v.  Harriott,  2  P.  &  W.  154— §§48,  n.  (1)  (b) ;  51,  n.  (1)  (a). 
Lee's  Est.,  18  Pa.  Super.  513— §146,  n.  (2)   (i). 
Lee  v.  Keys,  88  Pa.  175— §228,  n.  (18)  (t). 
Lee  v.  Newell,  107  Pa.  283— §228,  n.  (20)  (g),  (h) ;  n.  (23)  (g). 
Lee  Co.  v.  Sherman,  43  Pa.  Super.  557— §§82,  n.  (1)   (b) ;  186,  n.  (1) 
(a). 

645 


Lee-Lew  TABLE  OF  CASES. 


Leech  v.  Leech,  21  Pa.  67— §228,  n.  (22)  (k). 

Leedom  v.  Ry.,  217  Pa.  278— §43,  n.  (3)   (f). 

Lefever  v.  Witmer,  10  Pa.  505— §§48,  n.  (1)   (d2) ;  228,  n.  (24)   (k3). 

Lehigh  Coal  Co.'s  Ap.,  112  Pa.  360— §§48,  n.   (1)    (h2) ;  228,  n.  (24) 

(b3). 

Lehigh  Coal  Co.  v.  Everhart,  206  Pa.  118— §228,  n.  (18)  (g2). 
Lehigh  Coal  Co.  v.  Evans,  176  Pa.  28— §228,  n.  (23)   (h),  (k). 
Lehigh  Iron  Co.  v.  Twp.,  81  Pa.  482— §1,  n.  (3). 
Lehigh  Valley  R.  R.  Co.  v.  Hall,  61  Pa.  361— §147,  n.  (4)  (b). 
Lehigh  Valley  R.  R.  Co.  v.  Brandtmaier,  113  Pa.  610— §228,  n.  (20) 

(a),   (b). 
Lehman  v.  Kellerman,  65  Pa.  489— §§82,  n.  (1)   (a) ;  183,  n.  (4)   (k) ; 

228,  n.  (24)   (12). 

Lehman  v.  Lehman,  215  Pa.  344— §228,  n.  (14)   (a). 
Lehman  v.  Murtoff,  7  Pa.  Super.  485— §228,  n.  (21)  (h). 
Leib  v.  Com.,  9  Watts  200— §39,  n.  (1)  (b). 
Leibig  v.  Steiner,  94  Pa.  466— §228,  n.  (21)  (a). 
Leitz  v.  Hohman,  207  Pa.  289— §§182,  n.  (3)  (a) ;  228,  n.  (24)  (d4). 
Lenox  v.  McCall,  3  S.  &  R.  95— §182,  n.  (4)  (o2). 
Lentz  v.  Stroh,  6  S.  &  R.  34— §182,  n.  (2)  (j). 
Lentz's  Account,  5  Pa.  103— §229,  n.  (1)   (a). 
Leonard's  Est.,  226  Pa.  277— §228,  n.  (18)   (q). 
Leonard  v.  Leonard,  20  W.  N.  C.  346— §228,  n.  (24)   (m4). 
Leonard  v.  Leslie,  23  Pa.  Super.  63— §147,  n.  (4)  (c). 
Leonard  v.  Smith,  4  Dist.  249— §§228,  n.  (7)   (a) ;  239,  n.  (1)   (d) ;  n. 

(2)   (b);n.  (4)    (d). 

Leonard  v.  Smith,  162  Pa,  284— §228,  n.  (18)  (t). 
Lerch  v.  Snyder,  112  Pa.  161— §§228,  n.  (1)   (c) ;  228,  n.  (25)  (a). 
Lerch  v.  Bard,  177  Pa.  197— §228,  n.  (21)  (h). 
Levenson  v.  Pittsburg,  54  Pitts.  296— §173,  n.  (1). 
Levers  v.  Van  Buskirk,  4  Pa.  309— §228,  n.  (22)  (o). 
Levin  v.  Traction  Co.,  194  Pa.  156— §197,  n.  (1)  (a) ;  page  515,  Ap. 
Levison  v.  Davis,  212  Pa.  148— §187,  n.  (4)   (a). 
Levy  v.  Singer  Co.,  32  Pa.  Super.  117— §§155,  n.  (1)  (a) ;  161,  n.  (3) 

(g). 

Lewin  v.  Pauli,  19  Pa.  Super.  447— §228,  n.  (19)  (a). 
Lewis's  Case,  29  Pa.  518— §14,  n.  (2). 
Lewis's  Ap.,  91  Pa.  359— §43,  n.  (9)  (a). 
Lewis's  Ap.,  6  Sad.  79— §48,  n.  (1)  (a). 
Lewis  v.  Protheroe,  17  Atl.  200— §228,  n.  (25)  (a). 
Lewis  v.  Smith,  2  S.  &  R.  142— §43,  n.  (2)  (c). 
Lewis  v.  Water  Co.,  176  Pa.  237— §228,  n.  (20)   (x). 
Lewis  v.  Baker,  5  Rawle  114— §228,  n.  (25)  (v). 
Lewis  v.  Rattigan,  138  Pa.  308— §228,  n.  (20)  (a),  (j). 
Lewis  v.  England,  4  Bin.  5— §43,  n.  (2)   (j),  (q). 
Lewis  v.  R.  R.,  220  Pa.  317— §161,  n.  (3)   (n). 
Lewis  v.  Wallick,  3  S.  &  R.  410— §§43,  n.  (1)  (b) ;  48,  n.  (1)  (q) ;  62, 

n.  (1). 
Lewisburg  Boro.  Overseers  v.  Overseers,  32  L.  I.  284 — §48,  n.   (1) 

(m2). 

646 


TABLE  OF  CASES.  Lew-Lon 


Lewisburg  Boro.  Overseers  v.  Overseers,  1  W.  N.  C.  209 — §§85,  n.  (1) 

(d);n.  (2)  (a). 

Ley  v.  Union  Canal,  5  Watts  104— §228,  n.  (24)   (e). 
Liberty  Twp.  Overseers  v.  Overseers,  4  Pa.  Super.  411 — §§85,  n.  (1) 

(a)jn.  (2)   (d). 

Light  v.  Miller,  38  Pa.  Super.  408— §228,  n.  (3)  (d) ;  n.  (8)   (k). 
Light  v.  Ry.,  4  Pa.  Super.  427— §228,  n.  (18)   (g). 
Lillie  v.  Car  Co.,  209  Pa.  161— §228,  n.  (20)  (s). 
Light  v.  Railway  Co.,  4  Pa.  Super.  427— §228,  n.  (19)   (a),  (g). 
Lilly  v.  Paschal,  2  S.  &  R.  394— §228,  n.  (19)  (a). 
Limbert  v.  Jones,  118  Pa.  589— §74,  n.  (1)  (e),  (f). 
Lincoln  v.  Africa,  228  Pa.  546— §44,  n.  (5)   (d). 
Lincoln  v.  Wright,  23  Pa.  76— §228,  n.  (22)   (i2). 
Lindemuth's  Est.,  5  Watts  145— §228,  n.  (6)  (b). 
Linderman  v.  Hershberger,  47  Pa.  Super.  308 — §58    (A),  appendix, 

pages  517,  522. 

Lindsay  v.  Button,  227  Pa.  208— §183,  n.  (4)  (h). 
Lindsley  v.  Malone,  23  Pa.  24— §228,  n.  (24)  (u). 
Lingenfelter  v.  Williams,  7  Sad.  70— §228,  n.  (24  )(m). 
Linn  v.  Naglee,  4  Whar.  92— §228,  n.  (20)  (n),  (x). 
Linn  v.  Com.,  96  Pa.  285— §228,  n.  (21)  (h),  (i). 
Lippincott's  License,  44  Pa.  Super.  459— §228,  n.  (25)   (s3). 
Lister  v.  Telephone,  39  Pa.  Super.  321— §155,  n.  (1)   (a),  (b). 
Littell  v.  Young,  5  Pa.  Super.  205— §§183,  n.  (4)  (a)  j  228,  n.  (16)  (b). 
Little  Britain  Road,  27  Pa.  69— §146,  n.  (2)   (h). 
Little  Meadows  Boro.,  28  Pa.  256— §§183,  n.  (3)  (c) ;  228,  n.  (11)  (e) ; 

n.  (15)  (j). 

Little  Schuylkill  R.  R.  v.  Norton,  24  Pa.  465— §228,  n.  (8)  (a). 
Livingston  v.  School  Board,  15  Pa.  Super.  358— §228,  n.  (8)   (g),  (r). 
Livingston  v.  School  Board,  9  Pa.  Super.  110— §228,  n.  (15)   (a). 
Lloyd  v.  Carter,  17  Pa.  216— §228,  n.  (22)   (k). 
Locher  v.  Byer,  218  Pa.  574— §228,  n.  (18)   (g). 
Locher's  Est.,  24  Lane.  121— §§164,  n.  (1) ;  168,  n.  (1)  (b). 
Lockhart  Street,  22  C.  C.  363— §56,  n.  (6)   (c). 
Lodge's  Ap.,  2  Mona.  764— §242,  n.  (2)   (g). 
Loeffler  v.  Schmertz,  152  Pa.  615— §66,  n.  (3)   (f). 
Loeweke  v.  B.  &  L.  Asso.,  21  Pa.  Super.  389— §185,  n.  (3)  (a) ;  n.  (5) 

(a);187,n.  (1)   (b) ;  n.  (4)  (f). 

Logan  v.  Friedline,  10  Pa.  Super.  461— §187,  n.  (1)   (b). 
Logan  v.  Jennings,  4  Rawle  355— §43,  n.  (3)    (g),  (r2). 
Logue's  Ap.,  104  Pa.  136— §228,  n.  (18)  (z). 
Lombard,  etc.  Ry.  Co.  v.  Christian,  124  Pa.  61— §228,  n.  (23)  (h). 
London  Assurance  Co.  v.  Russell,  1  Pa.  Super.  320— §§187,  n.  (1)  (b), 

(f);  198,  n.   (1)    (b). 
Long's  Est.,  87  Pa.  114— §48,  n.  (5)  (a). 
Long's  Est.,  165  Pa.  341— §45,  n.  (3)  (k). 
Long  v.  Milford  Twp.,  137  Pa.  122— §186,  n.  (1)   (a). 
Long  v.  Bank,  211  Pa.  165— §43,  n.  (2)    (a2). 
Long  v.  Hepps,  45  Pa.  Super.  76— §187,  n.  (1)   (i). 
Long  v.  Long,  4  Pa.  29— §228,  n.  (13)  (b). 

647 


Lon-Mah  TABLE  OF  CASES. 


Long  v.  Maguire,  22  Pa.  163— §228,  n.  (1)  (a) ;  n.  (17)  (a). 

Long  v.  McHenry,  45  Pa.  Super.  530— §88,  n.  (1)   (c). 

Long  v.  Milford,  137  Pa.  122— §228,  n.  (20)    (b2). 

Long  v.  Ramsay,  1  S.  &  R.  72— §228,  n.  (20)   (c) ;  n.  (21)   (a). 

Lonzer  v.  R.  R.,  196  Pa.  610— §228,  n.  (23)   (e),  (f). 

Loomis  v.  Ross,  12  Pa.  Super.  95— §228,  n.  (24)   (e). 

Lorain  v.  Hall,  33  Pa.  270— §228,  n.  (22)  (k2). 

Lorenz  v.  King,  38  Pa.  93— §228,  n.  (30)   (f). 

Lothrop  v.  Wightman,  41  Pa.  297— §161,  n.  (5)   (f),  (p). 

Louchheim  v.  Henzey,  9  W.  N.  C.  571— §228,  n.  (23)  (e) ;  n.  (24)  (p2). 

Loveland  v.  Howe,  2  Lack.  L.  N.  34— §59,  n.  (4)   (d). 

Lovett  v.  Mathews,  24  Pa.  330— §187,  n.  (4)  (b). 

Lowenstein  v.  Bache,  37  Pa.  Super.  420— §183,  n.  (5)   (f). 

Lowenstein  v.  Ins.  Co.,  132  Pa.  410— §§126,  n.  (1)  (a),  (c) ;  n.  (4)  (a) ; 

190,  n.  (12)   (a);  193,  n.  (3);  228,  n.  (24)   (r2). 
Lower  Augusta  Twp.  v.  Selinsgrove,  64  Pa.  166 — §85,  n.  (1)    (a) ;  n. 

(2)  (d);n.  (2)   (f ) ;  n.  (2)   (g). 
Lower  Merion  Twp.  v.  Cline,  211  Pa.  559— §§48,  n.   (1)    (c) ;  182,  n. 

(3);  n.  (4)   (e2). 

Lower  Merion  Road,  18  Pa.  238— §228,  n.  (11)   (a). 
Lower  Saucon  Twp.  v.  Broadhead,  9  Atl.  63— §228,  n.  (24)   (b3). 
Lowrey  v.  Robinson,  141  Pa.  189— §§82,  n.  (1)   (a) ;  161,  n.  (4)   (g) ; 

228,  n.  (24)   (12). 

Lowry's  Est.,  36  Pa.  Super.  143— §228,  n.  (18)   (g),  (q). 
Ludwig  Piano  Co.  v.  Browne,  33  Pa.  Super.  81— §§186,  n.   (1)    (a) ; 

228,  n.  (4)  (f);239,  n.  (2)  (u). 
Lupton  v.  Moore,  101  Pa.  318— §228,  n.  (30)  (f). 
Luther  v.  Luther,  226  Pa.  144— §228,  n.  (18)  (m). 
Luzerne  County  Poor  Dist.  v.  Poor  Dist.,  22  Pa.  Super.  274 — §85,  n. 

(1),   (b). 

Lycoming  Fire  Ins.  Co.  v.  Storrs.  97  Pa.  354— §43,  n.  (3)   (b). 
Lycoming  Ins.  Co.  v.  Schreffler,  42  Pa.  188— §228,  n.  (22)   (a). 
Lycoming  Ins.  Co.  v.  Sailer,  67  Pa.  108— §228,  n.  (25)   (a). 
Lynch  v.  City,  151  Pa.  380— §228,  n.  (23)   (d),  (e). 
Lynch  v.  Welsh,  3  Pa.  294— §228,  n.  (22)   (a). 
Lyon  v.  Dunn,  196  Pa.  90— §§48,  n.  (1)  (v) ;  161,  n.  (4)   (r). 
Lyons  v.  Phillips,  106  Pa.  57— §228,  n.  (11)   (b) ;  n.  (24)   (z3). 
Lyons  v.  Lyons,  207  Pa.  13— §228,  n.  (18)   (m). 
Lyons  v.  Means,  1  Pa.  Super.  608— §228,  n.  (4)  (i). 
Lyons 's  Ap.,  61  Pa.  15— §146,  n.  (2)  (g). 
Lytle  v.  Rupert,  44  Pa.  Super.  493— §187,  n.  (1)  (k). 

Machen  v.  Ry.,  13  Pa.  Super.  642— §228,  n.  (19)  (a). 
Mackaness  v.  Long,  85  Pa.  158— §§43,  n.  (2)  (b2) ;  182,  n.  (2)  (12). 
Mackintyre  v.  Jones,  9  Pa.  Super.  543— §228,  n.  (18)   (h). 
Madara  v.  Eversole,  62  Pa.  160— §228,  n.  (23)   (h),  (k). 
MacKellar  v.  Seeds,  10  Pa.  Super.  167— §288,  n.  (15)   (a). 
Madison  Overseers  v.  Overseers,  3  Sad.  494 — §190,  n.  (12)   (m). 
Magill  v.  Kaufman,  4  S.  &  R.  317— §163,  n.  (4)   (b). 
Mahaffey  v.  Byers,  151  Pa.  92— §228,  n.  (20)  (h). 

648 


TABLE  OF  CASES.  Mah-Mau 


Mahanoy  City  v.  Wadlinger,  142  Pa.  308— §§48  n.   (2)    (c) ;  182,  n. 

(4)   (b). 

Maher  v.  Traction  Co.,  181  Pa.  391— §43,  n.  (10)   (c). 
Maher  v.  Ashmead,  30  Pa.  344— §§146,  n.  (1)  (b) ;  228,  n.  (11)  (e). 
Mahoning  County  Bank's  Ap.,  32  Pa.  158— §43,  n.  (2)   (b). 
Makof  v.  Sherman,  17  Dist.  55 — §117,  n.  (3)   (c). 
Malone  v.  R.  R.,  157  Pa.  430— §§187,  n.  (1)  (b) ;  228,  n.  (20)   (m) ;  n. 

(22)   (f),  (k);  n.  (25)   (a). 

Malson  v.  Fry,  1  Watts  433— §228,  n.  (20)   (j) ;  n.  (23)  (d). 
Maneval  v.  Jackson  Twp.,  141  Pa,  426— §74,  n.  (1)    (h). 
Manhattan  L.  I.  Co.  v.  McLaughlin,  80  Pa,  53— §§43,  n.  (9)  (h) ;  51,  n. 

(2)  (a). 

Manheim  Twp.  Road,  12  Pa.  Super.  279— §231,  n.  (1)  (a). 
Manley  v.  Okell,  19  Pa.  Super.  240— §§193,  n.  (2)  (a) ;  196,  n.  (1)  (a). 
Mann  v.  Cassidy,  1  Brews.  11 — §161,  n.  (4)  (a). 
Mann  v.  Cowan,  8  Pa.  Super.  30— §228,  n.  (20)   (r). 
Mansfield  Coal  Co.  v.  McEnery,  91  Pa.  185— §228,  n.  (8)   (1). 
Mapes  v.  Packing  Co.,  31  Pa.  Super.  453— §186,  n.  (1)  (c). 
Marbaker  v.  Matson,  3  Walk.  506— §43,  n.  (9)  (j). 
March  v.  Com.,  16  S.  &  R.  319— §46,  n.  (1)  (a). 
Marcy  v.  Springville  Twp.,  24  Pa.  Super.  521— §77,  n.  (1)   (c). 
Marcy  v.  Brock,  207  Pa.  95— §228,  n.  (9)   (b) ;  n.  (24)  (q2). 
Markle  v.  Berwick,  142  Pa.  84— §187,  n.  (1)   (b). 
Markle  v.  Wilbur,  200  Pa.  473— §239,  n.  (2)   (g). 
Marks  v.  Baker,  2  Pa.  Super.  167— §§167,  n.  (1)  (a) ;  168,  n.  (1)   (a). 
Marquis  v.  McKay,  216  Pa.  307— §50,  n.  (4)   (a);  n.  (5)  (b). 
Marr  v.  Marr,  6  Sad.  138— §228,  n.  (18)  (m2). 
Marten's  Ap.,  13  W.  N.  C.  289— §43,  n.  (9)   (n). 
Martin  v.  Strong,  35  Pa.  Super.  635— §183,  n.  (4)   (b). 
Martin  v.  Rider,  181  Pa.  265— §242,  n.  (1)   (h). 
Martinburg  Bank  v.  Penna.  Co.,  150  Pa.  36— §228,  n.  (4)  (1). 
Martinsburg  Bank  v.  Telephone  Co.,  150  Pa.  331— §228,  n.  (18)  (z). 
Martzinger  v.  Smith,  9  W.  N.  C.  274— §141,  n.  (1)  (i). 
Mathew's  Case,  92  Pa.  138— §182,  n.  (4)  (e). 
Mathews  v.  Scranton,  1  Lack.  L.  R.  474— §228,  n.  (5)  (b). 
Mathushek  Piano  Co.  v.  Engberry,  20  Pa.  Super.  543— §§147,  n.  (4) 

(c);186,  n.  (1)  (a);187,n.  (1)  (b). 
Mattern's  Ap.,  3  W.  N.  C.  166— §45,  n.  (3)  (q). 
Matthew's  Ap.,  13  W.  N.  C.  12— §199,  n.  (1)  (d). 
Matthews  v.  Sharp,  99  Pa.  560— §183,  n.  (6)   (b). 
Matthews  v.  Rising,  194  Pa.  217— §117,  n.  (1)   (a). 
Mauch  Chunk  v.  Nescopeck,  21  Pa.  46— §§48,  n.  (1)   (12) ;  146,  n.  (2) 

(a);161,n.  (4)  (i). 

Mauk's  Est.,  195  Pa.  483— §193,  n.  (1)  (a). 
Maurer's  Est.,  148  Pa.  272— §185,  n.  (1)   (h). 
Maurer's  Ap.,  148  Pa.  272— §185,  n.  (3)   (a). 
Maust  v.  Creasy,  42  Pa.  Super.  633— §228,  n.  (25)    (h). 
Maus  v.  Montgomery,  15  S.    R.  221— §228,  n.  (20)  (o2). 
Mans  v.  Maus,  6  Watts  275— §228,  n.  (15)   (a) ;  n.  (24)   (f ) ;  n.  (30) 
(a);n.  (22)  (n),  (e2),  (f2). 

649 


Max-McC  TABLE  OF  CASES. 


Max  Meadows  L.  &  I.  Co.  v.  Mendinhall,  4  Pa.  Super.  398— §50,  n. 

(4)    (a). 

May's  Est.,  25  Pa.  Super.  267— §43,  n.  (6)   (c). 
May's  Est.,  22  Pa.  Super.  77— §§43,  n.  (7)   (d) ;  111,  n.  (1)   (a). 
May's  Est.,  218  Pa.  64— §117,  n.  (2)   (e) ;  n.  (4)   (c). 
May  v.  Troutman,  4  Pa.  Super.  42— §186,  n.  (1)    (a). 
Mayer  v.  Brimmer,  15  Pa.  Super.  451— §§74,  n.  (1)   (b) ;  126,  n.  (4) 

(e). 

Maynard  v.  Bank,  20  W.  N.  C.  272— §228,  n.  (23)   (d). 
Maynes  v.  Atwater,  88  Pa.  496— §228,  n.  (23)   (1). 
McAdams  v.  Stilwell,  13  Pa.  90— §§161,  n.  (6)   (b) ;  228,  n.  (11)   (a). 
McAllister's  Ap.,  59  Pa.  204— §43,  n.  (6)  (g). 
McArdle's  Est.,  28  Pa.  Super.  106— §228,  n.  (18)  (g)   (1). 
McArthur  v.  Chase,  5  Sad.  67— §228,  n.  (11)   (a). 
McBeth  v.  Newlin,  15  W.  N.  C.  129— §§183,  n.  (2)   (k) ;  190,  n.  (12) 

(e);228,n.  (24)  (b). 

McBride  v.  Rinard,  172  Pa.  542— §§185,  n.  (1)  (i) ;  228,  n.  (18)  (b). 
McCabe's  License,  11  Pa.  Super.  560— §§43,  n.  (5)  (v) ;  146,  n.  (2)  (c). 
McCabe  v.  Emerson,  18  Pa.  Ill— §47,  n.  (1)  (a). 
McCabe  v.  Phila.,  12  Pa.  Super.  383— §228,  n.  (20)  (e)  j  n.  (21)  (h). 
McCafferty  v.  R.  R.,  193  Pa.  339— §43,  n.  (10)   (d). 
McCahan's  Est.,  221  Pa.  186— §228,  n.  (18)   (k). 
McCahan  v.  Reamey,  33  Pa.  535— §§43,  n.  (9)   (h) ;  51.  n.  (2)   (a). 
McCahan  v.  Wharton,  12  Pa.  424— §§190,  n.  (14)  (b) ;  228,  n.  (8)  (f ) ; 

n.  (20)  (j). 

McCall  v.  Crousillat,  3  S.  &  R.  7— §244,  n.  (1)   (d). 
McCalmont  v.  Allegheny  Co.,  29  Pa.  417— §8,  n.  (4). 
McCandless  v.  McWha.,  20  Pa.  183— §161,  n.  (9)   (b). 
McCandles  v.  Young,  96  Pa.  289— §190,  n.  (12)  (a). 
McCandless  Twp.  Road,  110  Pa.  605— §182,  n.  (4)   (e). 
McCann's  Ap.,  49  Pa.  304— §228,  n.  (24)    (h3). 
McCanna  v.  Johnston,  19  Pa.  434— §228,  n.  (1)  (j) ;  n.  (2)  (i)  j  n.  (4) 

(P). 

McCarr's  Est.,  C.  P.  Ct.,  15  W.  N.  C.  485— §66,  n.  (3)  (b). 
McCarter's  Ap.,  78  Pa.  401— §45,  n.  (3)   (a). 
McCarthy  v.  R.  R.,  211  Pa.  193— §183,  n.  (2)   (q). 
McCarty  v.  Gordon,  4  Whar.  321— §228,  n.  (22)   (x) ;  n.  (23)  (e). 
McCaskey  v.  Graff,  23  Pa.  321— §228,  n.  (1)  (a) ;  n.  (17)  (a),  (d). 
McCauley's  Ap.,  86  Pa.  187— §228,  n.  (24)  (e4). 
McClain  v.  County,  14  Pa.  Super.  273— §228,  n.  (4)   (v). 
McClain  v.  Lawrence  County,  14  Pa.  Super.  273— §228.  n.  (13)  (m). 
McClain  v.  Com.,  110  Pa.  416— §228,  n.  (21)   (d) ;  n.  (24)  (p2). 
McClay  v.  Hanna,  4  Dal.  160— §45,  n.  (2)  (a) ;  n.  (3)  (h). 
McClelland  v.  Pomeroy,  75  Pa.  410— §228,  n.  (24)  (z3). 
McClemmons  v.  Graham,  3  Bin.  88— §182,  n.  (2)  (a) ;  n.  (3)  (a). 
McClintock  v.  R.  R.,  21  W.  N.  C.  133— §228,  n.  (21)   (a). 
McCloskey  v.  R.  R.,  156  Pa.  254— §§146,  n.  (2)  (d) ;  228,  n.  (16)  (a). 
McClung  v.  Murphy,  2  Miles  177— §43,  n.  (2)   (c). 
McClurg  v.  Willard,  5  Watts  275— §228,  n.  (23)   (e). 
McClurg's  Ap.,  66  Pa.  366— §§61,  n.  (2)  (a) ;  228,  n.  (24)  (y2). 

650 


TABLE  OF  CASES.  McC-McG 


McCombs  v.  Railroad  Co.,  130  Pa.  182— §228,  n.  (22)  (k). 
McConahy  v.  R.  R.,  31  Pa.  Super.  215— §§183,  n.  (2)   (f),  (i) ;  185,  n. 

(2)    (a). 

McConkey  v.  Com.,  101  Pa.  416— §228,  n.  (21)  (e). 
McConnell  v.  R.  R.,  206  Pa.  370— §147,  n.  (4)   (c). 
McCord  v.  Durant,  134  Pa.  184— §186,  n.  (1)   (a). 
McCord  v.  Whitaker,  8  Pa.  Super.  277— §228,  n.  (19)  (i) ;  n.  (20)  (a). 
McCormick  v.  McGonigal,  4  Pa.  Super.  408— §228,  n.  (18)  (q). 
McCormick  v.  McCormick,  194  Pa.  107— §228,  n.  (21)  (a). 
McCosh  v.  Myers,  25  Pa.  Super.  61— §43,  n.  (7)  (q),  (r). 
McCosh  v.  Myers,  25  Pa.  Super.  61— §228,  n.  (20)   (a),  (r). 
McCoy  v.  Hance,  28  Pa.  149— §§190,  n.  (4) ;  n.  (14)  (b) ;  228,  n.  (22) 

(t). 

McCoy  v.  Porter,  17  S.  &  R.  59— §228,  n.  (5)   (a). 
McCracken  v.  Clark,  31  Pa.  498— §228,  n.  (2)   (h). 
McCracken  v.  Roberts,  19  Pa.  390— §228,  n.  (23)   (d). 
McCredy  v.  James,  6  Whar.  547— §228,  n.  (13)   (d). 
McCue  v.  Com.,  78  Pa.  185— §§46,  n.  (10);  230,  n.  (1)   (b). 
McCullough  v.  Kinnan,  31  Pa.  Super.  557— §228,  n.  (24)   (z3). 
McCullough  v.  Seitz,  28  Pa.  Super.  958— §§183,  n.  (4)  (r) ;  187,  n.  (1) 

(b). 

McCully  v.  Barr,  17  S.  &  R.  445— §228,  n.  (24)  (k2) ;  n.  (29)  (d). 
McDermott  v.  Blank,  230  Pa.  392— §98,  n.  (1)  (a). 
McDermott  v.  Woods,  147  Pa.  356— §228,  n.  (24)   (c). 
McDonough's  Case,  37  Pa.  275— §182,  n.  (4)  (12). 
McDowell  v.  Oyer,  21  Pa.  417— §228,  n.  (20)  (j). 
McDyer  v.  By.,  227  Pa.  641— §161,  n.  (4)   (g). 

McElheny  v.  McKeesport  Bridge  Co.,  153  Pa.  108— §190,  n.  (12)   (a). 
McElroy  v.  Braden,  152  Pa.  78— §187,  n.  (1)   (b). 
McFadden  v.  McFadden,  211.  Pa.  599— §§120,  n.  (2)   (b) ;  242,  n.  (1) 

(i). 
McFadden  v.  Rausch,  119  Pa.  507— §§190,  n.  (14)   (b) ;  228,  n.  (23) 

(c),  (e). 

McFait's  Ap.,  8  Pa.  290— §228,  n.  (28)    (c). 
McFall  v.  Ice  Co.,  123  Pa.  253— §228,  n.  (23)   (c). 
McFarland  v.  Clark,  4  W.  N.  C.  250— §§67,  n.  (1)    (b) ;  146,  n.  (2) 

(g). 

McFarland  v.  Township,  12  S.  &  R.  297— §228,  n.  (1)  (b) ;  n.  (17)  (a). 
McFarland  v.  Newman,  9  Watts  55— §228,  n.  (23)  (1). 
McFeaters  v.  Pattison,  188  Pa.  270— §228,  n.  (21)  (a),  (r2). 
McGarry  v.  McGarry,  9  Pa.  Super.  71. 
McGeary  v.  Huff,  31  Pa.  Super.  401— §43,  n.  (5)   (h). 
McGeary  v.  Raymond,  17  Pa.  Super.  308— §§185,  n.  (3)   (a) ;  187,  n. 

(2)   (a);  190,  n.  (13)  (a). 
McGeehan  v.  Hughes,  217  Pa.  121— §§88,  n.  (4)   (a) ;  126,  n.  (3)   (f ) ; 

228,  n.  (3)    (e). 

McGeehan  v.  Hughes,  223  Pa.  524— §126,  n.  (4)  (s). 
McGeorge  v.  Steel  &  Iron  Co.,  (C.  P.  Mont'g  Co.),  11  Phila.  602— §36, 

n.  (1). 
McGiffin  v.  Grocery  Co.,  29  Pa.  Super.  431— §228,  n.  (24  (p2). 

651 


McG-McN  TABLE  OF  CASES. 


McGinn  v.  Benner,  180  Pa.  396— §228,  n.  (18)   (t). 

McGinnis  v.  Com.  102  Pa.  66— §§228,  n.  (24)  (p2) ;  230,  n.  (1)  (a). 

McGinnis  v.  Com.,  74  Pa.  245— §§48,  n.  (1)  (g2) ;  182,  n.  (2)   (a),  (g). 

McGinnis  v.  Ins.  Co.,  38  Pa,  Super.  390— §161,  n.  (1)   (h). 

McGlue  v.  Phila.,  105  Pa.  236— §§43,  n.  (1)   (g) ;  n.  (3)   (w) ;  126,  n. 

(5). 

McGonnigle  v.  McGonnigle,  5  Pa.  Super.  168,  178— §228,  n.  (30)   (b). 
McGrain  v.  Ins.  Co.,  5  Pa.  Super.  488— §288,  n.  (15  (g). 
McGrain  v.  Hilton,  221  Pa.  568— §228,  n.  (18)   (n),  (s). 
McGraw  v.  Ins  Co.,  5  Pa.  Super.  488— §228,  n.  (15). 
McGrew  v.  Lippincott,  6  P.  L.  J.  67— §228,  n.  (19)  (a). 
McHenry  v.  Bulifant,  207  Pa.  15— §228,  n.  (22)  (n) ;  n.  (26)  (e). 
McHugh  v.  Schlosser,  159  Pa.  480— §228,  n  (23)   (e). 
Mclldowny  v.  Williams,  28  Pa.  492— §228,  n.  (23)  (h). 
Mcllvaine  v.  Mcllvaine,  6  S.  &  R.  559— §228,  n.  (20)  (s). 
McKee  v.  Sanford,  25  Pa.  105— §§11,  n.   (3)    (d) ;  42,  n.   (1)    (d) ; 

228,  n.  (24)   (z3). 

McKeeby  v.  Webster,  170  Pa.  624— §§163,  n.  (4)  (b) ;  167,  n.  (1)  (c). 
McKellar  v.  Leeds,  10  Pa.  Super.  167— §228,  n.  (14)  (a). 
McKelvey  v.  Wilson,  9  Pa.  183— §185,  n.  (1)  (1). 
McKelvy  v.  Ins.  Co.,  161  Pa.  279— §228,  n.  (21)    (h). 
McKenney  v.  Fawcett,  138  Pa.  344— §228,  n.  (24)  (p2). 
McKeon  v.  King,  9  Pa.  213— §161,  n.  (1)   (g) ;  n.  (4)   (a). 
McKnight  v.  Newell,  209  Pa.  562— §§187,  n.  (2)  (a) ;  190,  n.  (13)  (a) ; 

228,  n.  (25)   (z). 

McKnight  v.  Ratcliff,  44  Pa.  165— §228,  n.  (22)    (k). 
McLain  v.  Com.,  110  Pa.  263— §288,  n.  (21)   (a). 
McLane  v.  Hoffman,  164  Pa.  491— §228,  n.  (24)  (b). 
McLaughlin  v.  Parker,  3  S.  &  R.  144— §228  n.  (13)  (r). 
McLean  v.  Bindley,  114  Pa.  559— §§182, -n.  (2)  (e2) ;  228,  n.  (30)   (a). 
McLenahan  v.  Andrews,  135  Pa.  383— §228,  n.  (21)  (a). 
McManus 's  Ap.,  5  Pa.  Super.  65— §228,  n.  (24)   (d3). 
McManus  v.  Watson,  223  Pa.  581— §228,  n.  (18)   (g). 
McManus  v.  Turnpike  Co.  v.  R.  R.,  5  Pa.  Super.  65— §228,  n.  (24)  (g3). 
McManus  v.  Com.,  91  Pa.  57— §228,  n.  (24)  (p2). 
McMarlan  v.  English,  74  Pa.  296— §228,  n.  (20)  (x). 
McMasters  v.  Blair,  31  Pa.  467— §§239,  n.  (4)   (b) ;  244,  n.  (1)  (c). 
McMeekin  v.  Ry.,  229  Pa.  572— §228,  n.  (20)   (r). 
McMeen  v.  Com.,  114  Pa.  300— §228,  n.  (11)  (a) ;  n.  (21)   (a) ;  n.  (24) 

(d2). 
McMellen  v.  Williamson,  32  Pa.  Super.  263— §§11,  n.  (4)   (c) ;  196,  n. 

(1)   (a);n.  (3)  (a) ;  213,  n.  (1). 
McMicken  v.  Com.,  58  Pa.  213— §228,  n.  (3)  (a). 
McMillin  v.  McMillin,  183  Pa.  91— §228,  n.  (18)  (t). 
McMurtrie  v.  Black,  180  Pa.  66— §228,  n.  (23)  (f). 
McNair  v.  McLennan,  24  Pa.  384— §161,  n.  (3)   (c). 
McNeilPs  Election,  111  Pa.  235— §§48,  n.  (1)  (y) ;  182,  n.  (4)   (b). 
McNeil  Co.  v.  Nimick  &  Co.,  194  Pa.  187— §228,  n.  (22)  (g2). 
McNeil  Co.  v.  Steel  Co.,  207  Pa.  493— §228,  n.  (16)   (e) ;  n.  (19)   (d) ; 

n.  (20)  (a);n.  (21)  (a) ;  n.  (24)  (P2). 

652 


TABLE  OF  CASES.  McN-Mif 


McNulty's  Est.,  230  Pa.  387— §§43.  n.  (6)   (k) ;  228,  n.  (18)  (k). 

McNulty  v.  R.  R.,  182  Pa.  479— §186,  n.  (1)   (a). 

McPherran's  Est.,  212  Pa.  425— §228,  n.  (18)   (q). 

Mechling  v.  Bank,  34  L.  I.  313— §163,  n.  (3)   (a). 

Meckes  v.  Water  Co.,  203  Pa.  13— §228,  n.  (18)  (e). 

Medary  v.  Gathers  161  Pa.  87— §§82,  n.  (1)   (a) ;  228,  n.  (24)  (12). 

Medis  v.  Bentley,  216  Pa.  324— §228,  n.  (20)   (r). 

Meenan's  Ap.,  11  Pa.  Super.  55— §146,  n.  (2)  (c). 

Meese  v.  Levis,  13  Pa.  384— §§147,  n.  (2)   (a) ;  n.  (4)   (b) ;  161,  n.  (7) 

(b). 
Mehaffey  v.  Fink,  13  Pa.  Super.  534— §§126,  n.  (1)    (a) ;  140,  n.  (3) 

(b);167,  n.  (1)  (b). 

Mehring  v.  B.  &  L.  Asso.,  17  W.  N.  C.  422— §50,  n.  (2)  (a). 
Melchoir  v.  Ralston,  22  Yeates  154— §228,  n.  (13)    (b) ;  n.  (17)   (a). 
Mellick  v.  Penna  R.  R.,  203  Pa.  457,  459— §188. 
Mellinger  v.  R.  R.  229  Pa.  122— §228,  n.  (24)  (p2). 
Mellon's  Ap.,  32  Pa.  121— §§43,  n.  (6)   (d),  (n2) ;  99,  n.  (1) ;  228,  n. 

(18)  (q). 

Melon  Street,  192  Pa.  331— §120,  n.  (2)   (c). 
Melon  Street,  182  Pa.  397— §121,  n.  (2)  (a). 
Melon  Street,  182  Pa.  399— §121,  n.  (3)  (b). 
Melon  Street,  9  Pa.  Super.  18— §124,  n.  (1)   (a). 
Melvin  v.  Melvin,  130  Pa.  6— §§187,  n.  (1)   (b) ;  228,  n.  (24)   (f). 
Memphis  v.  Wilcox,  48  Pa.  161— §228,  n.  (30)   (f). 
Mendenhall  v.  Mendenhall,  12  Pa.  Super.  290— §228,  n.    (18)    (f2), 

(J2). 

Menger  v.  Township,  1  Penny.  174— §228,  n.  (19)   (a). 
Menner  v.  Canal  Co.,  7  Pa.  Super.  135— §228,  n.  (23)  (b). 
Mercer  v.  Watson,  1  Watts  330— §228,  n.  (8)   (g). 
Mercer  School  Dist.  v.  Cummins,  1  Mona.  Ill — §126,  n.  (1)   (a). 
Merchants  Bank  v.  Gardner,  31  Pa.  Super.  143— §228,  n.  (23)  (c). 
Merkel  v.  County,  81  Pa.  505— §88,  n.  (1)  (a). 
Merkel  v.  Berks  Co.,  81 V2  Pa.  505— §228,  n.  (11)   (a). 
Merriman  v.  McManus,  102  Pa.  102— §228,  n.  (15)   (g). 
Messmore  v.  Morrison,  172  Pa.  300— §228,  n.  (11)   (a). 
Messner  v.  Lancaster  Co.,  23  Pa.  291— §228,  n.  (25)   (c),  (e). 
Meyers  v.  Com.,  83  Pa.  131— §§46,  n.  (10) ;  228,  n.  (19)   (c) ;  n.  (20) 

(h);230,  n.  (1)   (b). 

Meyers  v.  Ritter,  41  Pa.  Super.  590— §228,  n.  (18)  (m). 
Michler  v.  Com.  62  Pa.  55— §228,  n.  (24)   (f). 
Middleton  v.  Middleton,  187  Pa.  612— §§61,  n.  (2)    (a) ;  228,  n.  (18) 

(h2). 
Middletown  Road,  15  Pa.  Super.  167— §§108,  n.  (2)   (g) ;  182,  n.  (4) 

(k);  183,  n.  (3)   (c) ;  228,  n.  (11)   (e),  (f) ;  n.  (15)   (j). 
Middleton  v.  Com.,  2  Watts  285— §§46,  n.  (7)   (a) ;  151,  n.  (1)    (b), 

n.  (2). 

Mifflin  Twp.  v.  Twp.,  18  Pa.  17— §48,  n.  (1)  (12). 
Mifflin  Twp.  Poor  Dist.  v.  Poor  Dist.,  37  Pa.  Super.  611— §§85,  n.  (2) 

(b),  (d);155,n.  (1)  (j) ;  161,  n.  (6)  (g). 
Mifflin  Bridge  Co.  v.  County,  133  Pa.  365— §228,  n.  (20)   (k). 

653 


Mil-Mit  TABLE  OF  CASES. 


Miles  v.  Stevens,  3  Pa.  21— §228,  n.  (25)   (a). 

Millbourne  Boro.,  46  Pa.  Super.  19— §182,  n.  (4)    (w). 

Mill  Creek  Boro.,  32  Pa.  Super.  465— §§56,  n.  (4)    (b) ;  228,  n.  (18) 

(g);n.  (24)  (n3). 

Millcreek  Twp.  v.  Perry,  20  W.  N.  C.  359— §228,  n.  (24)  (12). 
Miller's  Ap.,  8  Pa.  Super.  223— §228,  n.  (24)   (s3). 
Miller's  Est.,  159  Pa.  575— §126,  n.  (3)   (a),  (h) ;  n.  (4)   (b). 
Miller's  License,  8  Pa.  Super.  223— §228,  n.  (17)    (a). 
Miller  v.  Ballfour,  138  Pa.  183— §82,  n.  (2)  (a). 
Miller  v.  Bealer,  100  Pa.  583— §82,  n.  (3)  (a). 
Miller  v.  County,  25  Pa.  Super.  591— §98,  n.  (1)  (a),  (b). 
Miller  v.  Cambria  County  25  Pa.  Super.  591— §228,  n.  (18)   (q2). 
Miller  v.  Doyle,  211  Pa.  59— §190,  n.  (12)  (a),  (o). 
Miller  v.  Fitz,  41  Pa.  Super.  582— §§43,  n.  (3)  (v) ;  77,  n.  (2)  (c),  (e). 
Miller  v.  Hershey,  59  Pa,  64— §§88,  n.  (1)   (a) ;  161,  n.  (5)   (u). 
Miller  v.  Jackson,  38  Pa,  Super.  477— §240,  n.  (1)   (a). 
Miller  v.  Keene,  5  Watts  348— §228,  n.  (4)   (n). 
Miller  v.  Lash,  4  Pa.  Super.  292— §§126,  n.  (1)   (a) ;  228,  n.  (1)   (b) ; 

n.  (17)    (a). 

Miller  v.  Machine  Co.,  220  Pa.  181— §228,  n.  (22)   (a). 
Miller  v.  Milford,  2  S.  &  R.  35— §228,  n.  (24)  (j4). 
Miller  v.  Miller,  3  Bin.  30— §§48,  n.  (1)  (m) ;  182,  n.  (3)  (d). 
Miller  v.  Miller,  4  Pa.  317— §228,  n.  (13)  (f) ;  n.  (15)  (a) ;  n.  (25)  (h). 
Miller  v.  Miller,  187  Pa.  572— §228,  n.  (20)  (h),  (t2) ;  n.  (21)  (h). 
Miller  v.  Piatt,  33  Pa.  Super.  547— §228,  n.  (18)   (h). 
Miller  v.  Ralston,  1  S.  &  R.  309— §228,  n.  (2)  (f ) ;  n.  (8)  (q) ;  n.  (13) 

(r). 

Miller  v.  Sprecher,  2  Yeates  162— §228,  n.  (24)  (u). 
Miller  v.  Stem,  12  Pa.  383— §161,  n.  (5)  (b),  (w). 
Miller  v.  Summers,  13  Pa.  Super.  127— §182,  n.  (1)  (b) ;  n.  (4)  (i). 
Miller  v.  Warden,  111  Pa.  300— §228,  n.  (30)   (f). 
Mills  v.  Buchannan,  14  Pa.  95— §§187,  n.  (4)   (b) ;  228,  n.  (15)   (g) ; 

n.  (22)  (e). 

Mills  v.  Com.,  13  Pa.  630— §§228,  n.  (4)  (h) ;  230,  n.  (1)  (h). 
Mills  v.  Plant,  18  Pa.  Super.  80— §228,  n.  (21)   (a). 
Millvale  Boro.  v.  Poxon,  123  Pa.  497— §§48,  (A) ;  56,  n.  (4)  (a). 
Milton  Boro.  Overseers  v.  Overseers,  9  Pa.  Super.  204 — §228,  n.   (18) 

(g),  (j). 

Mineral  R.  R.  Co.  v.  Auten,  188  Pa.  568— §228,  n.  (19)  (a). 
Minick  v.  Gring,  1  Pa.  Super.  484— §228,  n.  (21)    (h). 
Minogue  v.  Boro.,  27  Pa.  Super.  506— §182,  n.  (4)   (q2). 
Mintzer  v.  Hogg,  192  Pa.  137— §§141,  n.  (1)  (c) ;  161,  n.  (9)  (e). 
Misel  v.  Betz,  168  Pa.  328— §187,  n.  (4)  (a). 
Misselwitz's  Case,  177  Pa.  359— §228,  n.  (24)    (h3). 
Mitchell's  Ap.,  60  Pa.  502— §45,  n.  (2)   (a) ;  n.  (3)   (i). 
Mitchell  v.  Com.,  37  Pa.  187— §190,  n.  (12)  (a). 
Mitchell  v.  Jodon,  22  Pa.  Super.  304— §§183,  n.  (4)   (e) ;  186,  n.  (1) 

(a);  228,  n.  (19)  (a). 

654 


TABLE  OF  CASES.  Mit-Mor 


Mitchell  v.  Edeburn,  37  Pa.  Super.  223— §§155,  n.  (1)  (c) ;  185,  n.  (1) 

(d);  228,  n.  (25)    (i). 

Mitchell  v.  Logan,  37  W.  N.  C.  398— §228,  n.  (26)   (b). 
Mitchell  v.  Mitchell,  18  W.  N.  C.  439— §228,  n.  (19)  (a). 
Mitchell  v.  Schreiner,  43  Pa.  Super.  633— §228,  n.  (20)   (o). 
Mix  v.  North  American,  209  Pa.  636— §§185,  n.  (2)   (d) ;  228,  n.  (9) 

(d) ;  n.  (24)  (p2) ;  page  524,  Ap. 
Mixel  v.  Betz,  168  Pa.  328— §228,  n.  (11)   (a). 
Mixter  v.  Coal  Co.,  152  Pa.  395— §228,  n.  (8)   (i). 
Mobley  v.  Bruner,  59  Pa.  481— §§82,  n.  (1)  (a) ;  228,  n.  (24)  (12). 
Mohney  v.  Evans,  51  Pa.  80— §228,  n.  (23)  (h). 
Mohr  v.  Warg,  26  Pa.  106— §228,  n.  (12)  (h). 
Monahan  v.  Auman,  42  Pa.  Super.  480— §43,  n.  (2)  (d2). 
Monongahela  Bridge  Co.  v.  Ry.,  114  Pa.  478— §48,  n.  (5)   (e). 
Monongahela  Bridge  Co.  v.  Kirk,  46  Pa.  112— §228,  n.  (20)  (g). 
Monongahela  Gas  Co.  v.  Gas  Co.,  43  Pa.  Super.  619— §50,  n.  (2)  (a). 
Monongahela  Ins.  Co.  v.  Chester,  43  Pa.  491— §228,  n.  (20)   (w). 
Montgomery  v.  Cunningham,  104  Pa.  349 — §161,  n.  (4)   (g). 
Montgomery  v.  Cunningham,  104  Pa.  459— §228,  n.  (11)    (a). 
Montoursville  Boro.  Overseers  v.  Overseers,  112  Pa.  99— §§85,  n.  (1) 

(a);  182,  n.  (1)   (b). 

Montz  v.  Morris,  89  Pa,  392— §228,  n.  (20)   (d). 
Moock  v.  Conrad,  155  Pa.  586— §§43,  n.  (3)  (t) ;  182,  n.  (4)  (t2) ;  228, 

n.  (24)   (t). 
Moodie  v.  Ashland  Bank,  1  W.  N.  C.  324— §§233,  n.  (1)  (c) ;  242,  n.  (3) 

(a). 

Moody 's  Ap.,  1  Penny.  282— §168,  n.  (1)  (a). 
Moore's  Ap.,  203  Pa.  376— §§43,  n.  (3)   (y) ;  54,  n.  (2)  (a). 
Moore's  Estate,  211  Pa.  338— §228,  n.  (18)  (1) ;  n.  (24)  (p3). 
Moore  v.  Adams.  29  Pa.  Super.  239— §228,  n.  (14)    (a). 
Moore  v.  Bischoff,  25  Pa.  Super.  1— §193,  n.  (1)  (a). 
Moore  v.  Miller,  8  Pa.  272— §228,  n.  (23)  (e),  (h). 
Moore  v.  Neubert,  21  Pa.  Super.  144— §228,  n.  (29)  (i). 
Moore  Twp.  Road,  17  Pa.  116— §228,  n.  (24)   (a3). 
Moore  v.  Porter,  13  S.  &  R.  100— §239,  n.  (2)  (a). 
Moore  v.  Publishing  Co.,  8  Pa.  Super.  152— §228,  n.  (19)   (a). 
Moore  v.  Steamboat  Co.,  196  Pa.  519— §44,  n.  (6)  (u). 
Moore  v.  Houston,  3  S.  &  R.  168— §126,  n.  (3)   (j). 
Moore  v.  Dunn,  147  Pa.  359— §66,  n.  (2)   (a) ;  n.  (3)   (e). 
Moore  v.  Park  Co.  196  Pa.  519— §43,  n.  (3)   (x). 
Moosic  Boro.,  12  Pa,  Super.  353— §§56,  n.  (4)   (b) ;  190,  n.  (13)    (h) ; 

194,  n.  (1)   (b);  228,  n.  (24)   (u3). 

Morbergen  v.  Hackenberg,  13  S.  &  R.  26— §147,  n.  (3)   (a). 
Morch  v.  Raubitschek,  159  Pa.  559— §§46,  n.  (2)   (a);  48,  n.  (2)   (a). 
Moreland  Twp.  v.  Davidson,  71  Pa.  371— §85,  n.  (1)  (a). 
Moreland  Twp.  Overseers  v.  Benton  Twp.  Poor  Dist.,  3  W.  N.  C.  20— 

§228,  n.  (1)  (b);  n.  (17)  (a). 

Morgan's  Ap.,  19  W.  N.  C.,  19— §190,  n.  (12)  (n). 
Morgan  v.  Duguesse  Boro.,  29  Pa.  Super.  100— §82,  n.  (1)   (a). 
Morgan  v.  County,  8  Pa.  Super.  96— §43,  n.  (9)    (j). 

655 


Mor-Mur  TABLE  OF  CASES. 


Morgan  v.  Gamble,  230  Pa.  165— §§186,  n.  (1)  (a) ;  228,  n.  (15)  (g). 

Morgan  v.  Terrell,  45  Pa.  Super.  639— §43,  n.  (6)   (j). 

Morrell  v.  Express  Co.,  34  L.  I:  321— §228,  n.  (25)   (d),  (t). 

Morrellville  Boro.,  7  Pa.  Super.  532— §182,  n.  (4)   (x). 

Morris's  Ap.,  42  L.  I.  395— §228,  n.  (24)   (p3). 

Morris  v.  Transit  Co.,  215  Pa.  317— §228,  n.  (13)   (k). 

Morris  v.  Buckley,  8  S.  &  R.  211— §161,  n.  (6)  (a) ;  n.  (7)  (a). 

Morris  v.  Buckley,  11  S.  &  R.  168— §§183,  n.  (4)  (q) ;  228,  n.  (13)  (t). 

Morris  v.  Rapid  Tr.  Co.,  215  Pa.  317— §190,  n.  (14)  (b). 

Morrison  v.  Bachert,  2  Mona.  664— §222,  n.  (1)  (c). 

Morrison  v.  Moreland,  15  S.  &  R.  61— §147,  n.  (3)    (a). 

Morrison  v.  Nevin,  130  Pa.  344— §§183,  n.  (2)  (h) ;  228,  n.  (1)  (b) ;  n. 

(17)  (a);n.  (24)  (b). 

Morrison  v.  Davis,  20  Pa.  171— §228,  n.  (22)  (a). 
Morrison's  Cove  Turnpike,  30  Pa.  Super.  51— §§100,  n.  (2)   (b) ;  182, 

n.  (4)  (1) ;  231,  n.  (1)  (b). 

Mortimer's  Ap.,  9  W.  N.  C.  313— §228,  n.  (24)   (r2). 
Morton's  Case,  3  Whar.  170— §228,  n.  (13)   (b). 
Morton  v.  Weaver,  99  Pa.  51— §228,  n.  (23)  (e). 
Morton  v.  Funk,  6  Pa.  483— §228,  n.  (11)   (a) ;  n.  (13)   (f ) ;  n.  (15) 

(a). 

Morton  Boro.,  15  Pa.  Super.  466— §56,  n.  (7)   (b). 
Moser  v.  Hock,  3  Pa.  230— §182,  n.  (2)  (h2). 
Moser  v.  Mayberry,  7  Watts  12— §228,  n.  (24)  (o2),  (r2). 
Moss's  Case,  219  Pa.  453— §182,  n.  (4)  (g). 

Moss  v.  Mitchell,  174  Pa.  517— §§43,  n.  (3)   (q) ;  182,  n.  (4)  (h). 
Mossman  v.  Higginson,  4  Ball.  12— §232,  n.  (1)   (h). 
Moudy  Mfg.  Co.  v.  R.  R.,  212  Pa.  156— §228,  n.  (19)   (i). 
Moxham  v.  Fundale  Bridge,  36  Pa.  Super.  298— §228,  n.  (24)   (v3). 
Meyer's  Ap.,  8  Pa.  Super.  475— §228,  n.  (24)   (s3). 
Moyer  v.  Dodson,  9  Del.  398— §§163,  n.  (3)   (g) ;  169,  n.  (1)   (a). 
Moyer  v.  Fretz,  1  Mona.  289— §228,  n.  (20)   (a2). 
Moyer  v.  Kirby,  14  S.  &  R.  162— §228,  n.  (2)   (f). 
Moyer  v.  Phillips,  40  Pa.  Super.  1— §§155,  n.  (1)  (a) ;  198,  n.  (1)  (f ) ; 

228,  n.  (9)   (b);n.  (24)   (p2). 
Mulf air's  Ap.,  110  Pa.  402— §229,  n.  (2)   (a). 
Mulhearn  v.  Roach,  24  Pa.  Super.  483— §228,  n.  (25)   (c),  (e). 
Mulholland's  Case,  217  Pa.  631— §§146,  n.   (1)    (i) ;  182,  n.  (4)    (d), 

(f). 

Mullen  v.  Wilson,  44  Pa.  413— §228,  n.  (19)   (a). 
Mullet  v.  Hensel,  7  Pa.  Super.  524— §§74,  n.  (1)  (s) ;  288,  n.  (24)  (z3). 
Munderback  v.  Lutz,  14  S.  &  R.  125— §§147,  n.  (2)    (a) ;  161,  n.  (5) 

(e);  228,  n.  (1)   (b) ;  n.  (17)   (a),  (d) ;  n.  (22)   (a),  (i),  (o), 

(p),  (q),  (d2). 

Mundorf  v.  Grier,  7  Pitts.  L.  164— §51,  n.  (4)   (s). 
Munson  v.  Crookstin,  219  Pa.  419— §187,  n.  (1)  (b). 
Murdock  v.  Martin,  132  Pa.  86— §§43,  n.  (2)  (g) ;  82,  n.  (1)  (c). 
Murdock  v.  Martin,  147  Pa.  203— §190,  n.  (14)  (b). 
Murphy's  Est,  21  Pa.  Super.  384— §228,  n.  (18)   (h),  (k). 
Murphy  v.  Dyer,  223  Pa.  18— §186,  n.  (1)   (c). 

656 


TABLE  OF  CASES.  Mur-New 


Murphy  v.  Flood,  2  Gr.  411— §161,  n.  (4)  (c). 

Murphy  v.  Chase,  103  Pa.  260— §228,  n.  (1)  (c) ;  n.  (27)  (g). 

Murphy  v.  Crosson,  98  Pa.  495— §228,  n.  (23)   (h). 

Murray  v.  Com.,  79  Pa.  311— §228,  n.  (20)   (h) ;  n.  (22)   (a) ;  n.  (22) 

(c),  (t2). 

Murtland  v.  English,  214  Pa.  325— §§183,  n.  (4)  (e) ;  228,  n.  (24)  (q2). 
Musgrove's  Case,  216  Pa.  598— §29,  n.  (4). 
Mushrush's  Est.,  23  C.  C.  629— §169,  n.  (1)   (c). 
Musick  v.  Borough,  184  Pa.  375— §228,  n.  (22)  (e). 
Musselman  v.  K.  R.,  2  W.  N.  C.  105— §228,  n.  (20)  (d). 
Musser  v.  Ry.,  176  Pa.  621— §228,  n.  (25)   (v). 

Mutual  Life  Ins.  Co.  v.  Tenan,  188  Pa.  239— §43,  n.  (5)  (z) ;  n.  (7)  (1). 
Mutual  Ins.  Co.  v.  Tenan,  204  Pa.  332— §228,  n.  (6)   (t). 
Myer  v.  Myer,  187  Pa.  247— §228,  n.  (1)  (f). 
Myers  v.  Litts,  195  Pa.  595— §187,  n.  (1)   (b). 
Myers  v.  Coal  Co.,  126  Pa.  582— §228,  n.  (20)  (u) ;  n.  (22)  (s) ;  n.  (23) 

(n);  n.  (24)  (a2). 

Myers  v.  Ins.  Co.,  26  Pa.  192— §228,  n.  (22)   (s) ;  n.  (23)   (n). 
Myersdale,  etc.  Ry.  v.  Ry.,  219  Pa.  559— §228,  n.  (22)  (u). 

Nassauer  v.  Ins.  Co.,  109  Pa.  507— §228,  n.  (20)  (a). 

National  Dredging  Co.  v.  Mundy,  155  Pa.  233— §228,  n.  (23)  (m). 

National  Lumber  Co.  v.  Mehaffy,  30  Pa.  Super.  544— §190,  n.   (8); 

n.  (12)   (a). 
National  Transit  Co.  v.  Pipe  Line  Co.,  180  Pa.  224— §44,  n.  (6)    (a), 

(t). 

Neel  v.  McElhenny,  189  Pa.  489— §244,  n.  (1)  (f). 
Neff  v.  R.  R.,  202  Pa.  371— §228,  n.  (9)  (b). 
Neff  v.  Barr,  14  S.  &  R,  166— §228,  n.  (24)   (3). 
Neil's  Est.,  27  Pa.  208— §228,  n.  (17)  (a). 
Neil  v.  Tate,  27  Pa.  208— §228,  n.  (1)   (a). 
Neiman  v.  Ward,  1  W.  &  S.  68— §228,  n.  (20)  (c). 
Nesbitt  v.  Turner,  155  Pa.  429— §228,  n.  (26)   (b). 
Neubert  v.  Water  Co.,  26  Pa.  Super.  608— §§77,  n.   (3) ;  104,  n.  (1) 

(a);108,n.  (3)  (c) ;  115,  n.  (1). 

Newbaker  v.  Alricks,  5  Watts  183— §228,  n.  (23)  (d),  (e). 
Newbold  v.  Wright,  4  Rawle  195— §228,  n.  (23)  (h). 
Newbold  v.  Newbold,  1  W.  N.  C.  134— §141,  n.  (1)   (i),  (j). 
New  Castle  v.  Electric  Co.,  2  Pa.  Super.  228— §50,  n.  (1) ;  n.  (4)  (w). 
New  Castle  R.  R.'s  Ap.,  3  Walk.  281— §§44,  n.  (5)  (c) ;  71,  n.  (1)  (b). 
New  Castle  v.  Genkinger,  37  Pa.  Super.  21— §243,  n.  (2)   (a) ;  n    (3) 

(g). 

Newhard  v.  Yundt,  132  Pa.  324— §228,  n.  (21)  (a). 
Newhart  v.  Wolfe,  2  Penny.  295— §228,  n.  (24)  (J4). 
Newlin's  Petition,  123  Pa.  541— §38,  n.  (1)  (i). 
Newlin  v.  Harris,  209  Pa.  558— §77,  n.  (1)  (a). 
Newlin  v.  Palmer,  11  S.  &  R.  98— §228,  n.  (13)  (f) ;  n.  (24)  (g). 
Newman  v.  Edwards,  34  Pa.  32— §228,  n.  (19)   (a). 
New  York,  etc.  R.  R.  v.  Enches,  127  Pa.  316— §228,  n.   (19)    (k) ;  n. 

(22)   (e),  (h). 

657 
42 


New-O'D  TABLE  OF  CASES. 


New  York  Tr.  Co.  v.  Coal  Co.,  227  Pa.  630— §50,  n.  (4)   (a). 

Nice  v.  Bowman,  6  Watts  26— §146,  n.  (2)   (g). 

Nichols's  Petition,  180  Pa,  591— §35,  n.  (2)  (c). 

Nicholas  v.  Wolfersberger,  5  S.  &  R.  167— §228,  n.  (24)   (J4). 

Nicoll  v.  McCaffrey,  1  Pa.  Super.  187— §146,  n.  (2)  (b),  (h). 

Nieman  v.  Ward,  1  W.  &  S.  68— §228,  n.  (20)   (d) ;  n.  (21)   (h). 

Nippes's  Ap.,  35  L.  I.  245— §228,  n.  (6)  (i). 

Noar  v.  Gill,  111  Pa.  488— §187,  n.  (1)   (b). 

Noble  v.  McClintock,  6  W.  &  S.  58— §228,  n.  (22)  (h). 

Nobles  v.  Piolett,  16  Pa.  Super.  386— §182,  n.  (4)   (e),  (k). 

Noel  v.  White,  37  Pa.  514— §228,  n.  (23)  (g). 

Nolt  v.  Crow,  22  Pa.  Super.  113— §187,  n.  (2)   (h). 

Norbeck  v.  Davis,  157  Pa.  399— §187,  n.  (1)   (b) ;  n.  (4)   (d). 

Norris  v.  Breakwater  Co.,  231  Pa,  163— §228,  n.  (6)  (f). 

Norris  v.  Ins.  Co.,  3  Yeates  84— §161,  n.  (6)   (b). 

Norristown  Boro.  v.  Fornance,  1  Pa.  Super.  129 — §§183,  n.   (2)    (c) ; 

187,  n.  (1)   (b);n.  (2)   (j). 

North  v.  Pantall,  197  Pa.  303— §§11,  n.  (4)   (c) ;  140,  n.  (3)   (d). 
Northern  Cent.  R.  R.  Co.  v.  Husson,  101  Pa.  1— §228,  n.  (23)  (e). 
Northampton  County's  Ap.,  57  Pa.  452— §182,  n.  (4)   (a). 
North  Franklin  Twp.  Road,  8  Pa,  Super.  358,  n.  (4)  (o). 
North  Mountain  Water  Co.  v.  Troxell,  233  Pa.  315— §§183,  n.  (2)  (a), 

(f),  (i);190,  n.  (3)   (b). 

North  Penna.  R.  R.  v.  Davis,  26  Pa.  238— §228,  n.  (24)  (e3). 
North  Penna.  R.  R.  v.  Kirk,  90  Pa.  15— §§161,  n.  (4)  (f) ;  228,  n.  (22) 

(p);n.  (23)  (g),  (h). 

North  Shore  R.  R.  v.  Penna.  Co.,  193  Pa.  641— §288,  n.  (11)   (e),  (f). 
North  Shore  R.  R.  v.  Penna.  Co.,  231  Pa.  307— §71,  n.  (1)  (g). 
Northumberland  County  Bank  v.  Eyer,  60  Pa.  436 — §§88,  n.  (1)    (a) ; 

183,  n.  (3)  (b);228,  n.  (30)  (d). 

Northwest  B.  &  L.  Asso.  v.  Godfrey,  41  Pa.  Super.  237— §50,  n.  (4)  (a). 
North  Whitehall  Twp.,  47  Pa.  156— §228,  n.  (24)  (b),  (c). 
Norton  v.  Lehn,  13  W.  N.  C.  339— §228,  n.  .(20)  (e). 
Norwegian  Twp.,  20  Pa.  324— §146,  n.  (1)   (e). 
Nugent  v.  Trac.  Co.,  183  Pa.  142— §228,  n.  (4)  (a) ;  n.  (5)  (a) :  n.  (8) 

(h). 

Nulton  v.  Campbell,  15  Pa.  Super.  151— §190,  n.  (14)   (a). 
Numan  v.  Kupp,  5  Bin.  73— §228,  n.  (20)  (x). 

Oakland  Boro.  v.  Boyden,  22  Pa.  Super.  278— §§183,  n.  (2)   (f ) ;  190, 

n.  (12)   (o);  n.  (14)    (a);  196,  n.  (1)   (a). 
Oakland  Ry.  v.  Fielding,  48  Pa.  320— §228,  n.  (20)  (u). 
Oakland  Ry.  v.  Thomas,  1  Penny.  435— §161,  n.  (5)  (c). 
Oakley  v.  Borough,  25  Pa.  Super.  425— §228,  n.  (18)   (a). 
Obney  v.  Obney,  26  Pa.  Super.  116— §228,  n.  (18)   (m). 
O'Brien's  Est.,  22  Pa.  Super.  475— §155,  n.  (1)  (a),  (f). 
O'Brien  v.  Collins,  205  Pa.  651— §228,  n.  (18)   (m). 
O'Donnell  v.  Allegheny  R,  R.,  50  Pa.  490— §190,  n.  (12)  (a). 
O'Donnell  v.  Broad,  149  Pa.  24— §242,  n.  (1)   (f). 

658 


TABLE  OF  CASES.  O'D-Pal 


O'Donnell  v.  Clements,  23  Pa.  Super.  447— §§183,  n.  (2)   (f ) ;  186,  n. 

(1)    (b);  190,  n.  (1)    (a);  n.  (12)   (k) ;  193,  n.  (1)    (a). 
O'Donnell  v.  Gaffney,  22  Pa.  Super.  316— §§183,  n.  (4)    (e) ;  228,  n. 

(19)  (a),  (r);n.  (20)   (k),  (r). 

O'Donnell  v.  Lynch,  1  W.  &  S.  283— §228,  n.  (25)   (a),  (e). 

Oehm  v.  Gas  Co.,  10  Pa.  Super.  593— §228,  n.  (22)  (w) ;  n.  (23)  (h). 

Oehmler  v.  Ry.  Co.,  25  Pa.  Super.  617— §228,  n.  (20)   (a),  (r). 

Offerle  v.  Lumber  Co.,  170  Pa.  29— §44  n.  (6)   (p). 

O'Hara  v.  R.  R.,  2  Gr.  241— §43,  n.  (2)   (a2) ;  n.  (3)   (w2). 

O'Hara  v.  Baum,  1  Penny.  430— §228,  n.  (24)  (o4). 

O'Hara  v.  Richardson,  46  Pa.  385— §228,  n.  (20)   (d). 

O'Hara  Twp.  Road,  152  Pa.  319— §§183,  n.  (3)   (c) ;  228,  n.  (11)   (e) ; 

n.  (15)  (j). 

Ohio,  etc.  R.  R.  v.  Bradford,  19  Pa.  363— §261,  n.  (4)  (j). 
Old  Colony  Tr.  Co.  v.  Transit  Co.,  192— §228,  n.  (18)  (n). 
Old  Forge  Boro.,  12  Pa.  Super.  359— §§48,  n.  (1)  (f ) ;  56,  n.  (4)  (b) ; 

228,  n.  (24)  (u3). 

Oldham  v.  Express  Co.,  25  Pa.  Super.  549— §228,  n.  (21)  (a),  (g). 
Omensetter  v.  Kemper,  6  Pa.  Super.  309— §§186,  n.  (1)    (c) ;  228,  n. 

(20)  (a);  n.   (21)    (a). 

Omit  v.  Com.,  21  Pa.  426— §228,  n.  (15)  (h). 

Oram  v.  Rothermel,  98  Pa.  300— §228,  n.  (20)   (h) ;  n.  (23)  (h). 

Ordroneaux  v.  Brady,  6  S.  &  R.  510— §228,  n.  (24)  (f). 

Ormsby  v.  Ihmsen,  34  Pa.  462— §47,  n.  (1)   (b). 

Orlady  v.  McNamara,  9  Watts,  192— §43,  n.  (2)   (r). 

Orr  v.  Rogers,  29  Pa.  Super.  175— §§43,  n.  (2)  (t) ;  77,  n.  (2)  (b). 

Osborne  Boro.,  101  Pa.  284— §228,  n.  (24)  (a3). 

Osterheldt  v.  Phila.,  195  Pa.  355— §190,  n.  (12)  (k). 

Osterheldt  v.  Philada.,  195  Pa.  362— §225,  n.  (1)  (c). 

Osterling  v.  Carpenter,  230  Pa.  153— §228,  n.  (4)   (g). 

Osterman  v.  Patterson,  219  Pa.  162— §228,  n.  (18)  (g). 

Oswald  v.  Kennedy,  48  Pa.  9— §§161,  n.  (4)   (g) ;  228,  n.  (11)   (a). 

OToole  v.  Publishing  Co.,  179  Pa.  271— §228,  n.  (19)  (a). 

Ott  v.  Oyer,  106  Pa.  6—  §§190,  n.  (13)   (1) ;  228,  n.  (19)   (a) ;  n.  (20) 

(c),  (h). 

Overfield  Twp.  Road,  25  Pa.  Super.  5— §228,  n.  (24)    (d3). 
Overfield  v.  Christie,  7  S.  &  R.  173— §228,  n.  (19)  (a). 
Owen's  Ap.,  78  Pa.  511— §45,  n.  (2)   (h). 
Owen's  Case,  140  Pa.  565— §§146,  n.  (2)    (a);  182,  n.   (4)    (i2) ;  228, 

n.   (18)    (g),  (n2). 

Owens  v.  Lancaster,  193  Pa.  436— §228,  n.  (20)  (n) ;  n.  (21)  (a). 
Owens  v.  Railway,  155  Pa.  334— §228,  n.  (20)  (a). 

Packer  v.  Owens,  164  Pa.  185— §43,  n.  (2)  (a2). 

Page  v.  Lytle,  229  Pa.  198— §150,  n.  (2). 

Page  v.  McNaughton,  2  Pa.  Super.  519— §§126,  n.  (1)   (a) ;  132,  n.  (2) 

(c) ;  140,  n.  (3)  (c) ;  167,  n.  (1)  (a) ;  168,  n.  (1)  (a). 
Paine  v.  Kindred,  163  Pa.  638,  642— §50,  n.  (4)  (a). 
Painters  Lateral  Railroad,  198  Pa.  461— §174,  n.  (1). 
Palethorp's  Est.,  160  Pa.  316— §45,  n.  (3)   (g). 

659 


Pal-Pie  TABLE  OF  CASES. 


Paletkorp  v.  Palethorp,  184  Pa.  585— §11,  n.  (4)  (c). 
Palethorp  v.  Palethorp,  168  Pa.  102— §44,  n.  (6)  (d). 
Palethorp  v.  Whitaker,  1  W.  N.  C.  163— §§190,  n.  (13)  (a) ;  199,  n. 

(1)    (c). 

Palm's  Est.,  13  Pa.  Super.  296— §239,  n.  (3)  (e). 
Palmer's  Est.,  132  Pa.  297— §228,  n.  (24)  (i),  (r3). 
Palmer  v.  R.  R.,  215  Pa.  518— §168,  n.  (2)  (b). 

Palmer  v.  Pub.  Co.,  7  Pa.  Super.  594— §228,  n.  (9)   (c) ;  n.  (24)   (p2). 
Palmer  v.  School  Board,  40  Pa.  Super.  203— §228,  n.  (24)  (s4). 
Pantall  v.  Iron  Co.,  204  Pa.  158— §§183,  n.  (4)  (q) ;  228,  n.  (31)  (c). 
Pantall  v.  Mclntyre,  197  Pa.  520— §§44,  n.  (6) ;  126,  n.  (6)  (d). 
Pardee  v.  Orvis,  103  Pa.  451— §228,  n.  (29)  (f). 
Park  v.  Holmes,  147  Pa.  497— §§228,  n.  (28)  (h) ;  232,  n.  (2)  (c). 
Parker  Twp.  Overseers'  Ap.,  1  Sadler  160— §48,  n.  (1)   (m2). 
Parker  Township  Overseers  v.  Overseers,  13  W.  N.  C.  141 — §85,  n.  (1) 

(a);n.  (2)  (a),  (c). 

Parker  v.  Donaldson,  6  W.  &  S.  132— §228,  n.  (20)   (c) ;  n.  (21)   (h). 
Parks  v.  Watts,  112  Pa.  4— §182,  n.  (4)   (a),  (h). 
Parrish  v.  Felts,  215  Pa.  654— §228,  n.  (24)  (z3). 
Parrish's  Ap.,  42  L.  I.  80— §168,  n.  (1)  (a). 
Passenger  Ins.  Co.  v.  Birnbaum,  116  Pa.  565— §228,  n.  (13)  (f). 
Passenger  Ins.  Co.  v.  Birnbaum,  19  W.  N.  C.  277;  §228,  n.  (11)  (a). 
Patterson's  Ap.,  104  Pa.  369— §45,  n.  (2)   (k). 
Patterson's  Ap.,  Supreme  Court,  April  4,  1853— §49,  n.  (2)  (c). 
Patterson  v.  Bank,  130  Pa.  419— §228,  n.  (24)  (j2). 
Patterson  v.  Dushane,  115  Pa.  334— §228,  n.  (23)   (h). 
Patterson  v.  Gas  Co.,  37  W.  N.  C.  422— §228,  n.  (25)  (m). 
Patterson  v.  Gas  Co.,  172  Pa.  554— §228,  n.  (25)   (a). 
Patterson  v.  Gallitzin  Asso.,  23  Pa.  Super.  54— §228,  n.  (24)  (e) 
Patterson  Hardware  Co.  v.  Blaisdell,  169  Pa.  636— §228,  n.  (19)  (a). 
Patterson  v.  Kountz,  63  Pa.  246— §228,  n.  (20)  (e2) ;  n.  (22)  (a). 
Patterson  v.  Patterson,  27  Pa.  40— §§43,  n.  (2)  (a2) ;  182,  n.  (2)  (J2). 
Patterson  v.  Roberts,  109  Pa.  42— §228,  n.  (24)  (g2). 
Patterson  v.  Roberts,  15  W.  N.  C.  547— §50,  n.  (2)  (b). 
Patton  v.  Allegheny  L.  &  T.  Co.,  36  Pa.  Super.  296— §§186,  n.  (1)  (a) ; 

190,  n.  (8). 

Patton  v.  Ry,  96  Pa.  169— §228,  n.  (8)   (j). 
Paul  v.  Kunz,  195  Pa.  207— §228,  n.  (20)   (d). 
Paxson's  Ap.,  106  Pa.  429— §228,  n.  (2)   (d). 
Payne's  Est.,  204  Pa.  535— §228,  n.  (15)  (a),  (g). 
Payne  v.  Noon,  5  Sad.  274— §228,  n.  (19)   (a). 
Payne  v.  Reese,  100  Pa.  301— §228,  n.  (22)  (n),  (d2) ;  n.  (23)  (g). 
Pearce  v.  Langfit,  101  Pa.  507— §228,  n.  (20)   (j),  (k). 
Pearsoll  v.  Chapin,  44  Pa.  9— §228,  n.  (20)   (h). 
Peck's  Ap.,  11  W.  N.  C.  31— §228,  n.  (24)  (b). 
Pedan  v.  Hopkins,  13  S.  &  R.  45— §228,  n.  (22)  (h). 
Peddle  v.  Hollingshead,  9  S.  &  R.  277— §§228,  n.  (28)  (d) ;  232,  n.  (1) 

(i). 

Peet  v.  Pittsburg,  96  Pa.  218— §182,  n.  (3)   (d). 
Pierson  v.  Duncan,  162  Pa.  187— §228,  n.  (21)   (h). 

660 


TABLE  OF  CASES.  Pen-Pet 


Penn  Gaskel's  Est.,  208  Pa.  346— §190,  n.  (12)  (k). 

Perm  Township,  8  Pa.  23— §228,  n.  (12)   (f). 

Penn  Mutual  Ins.  Co.  v.  Snyder,  3  W.  N.  C.  269— §228,  n.  (19)   (a) ; 

n.  (20)   (a). 

Pennsylvania  Hall,  5  Pa.  204— §228,  n.  (13)   (f). 
Penna.  Steel  Co.'s  Ap.,  161  Pa.  571— §§43,  n.  (3)  (d2) ;  44,  n.  (6)  (v). 
Penna.  Bank  v.  Haldeman,  1  P.  &  W.  161— §228,  n.  (25)   (v). 
Penna.  Canal  v.  Harris,  101  Pa.  80— §228,  n.  (20),  (b) ;  n.  (21)  (h). 
Penna.  Co.  v.  Toomey,  91  Pa.  256— §228,  n.  (22)  (e),  (h). 
Penna.  Central  Ins.  Co.  v.  Gaus,  91  Pa.  103— §126,  n.  (1)  (a). 
Penna.  In.  A.  Soc.  v.  Corley,  2  Penny.  139— §187,  n.  (4)  (c). 
Penna.  Ins.  Co.  v.  Ins.  Co.,  71  Pa.  31— §88,  n.  (1)  (a) 
Penna.  Ins.  Co.  v.  Passmore,  4  S.  &  R.  507 — §7,  n.    (2). 
Penna.  Co.  v.  R.  R.,  204  Pa.  356— §228,  n.  (18)  (m). 
Penna.  Co.  v.  Wallace,  36  Pa.  C.  C.  602— §239,  n.  (2)  (w). 
Penna.  Co.  v.  Wallace,  44  Pa.  Super.  64— §§  239,  n.  (2)   (v) ;  240,  n. 

(1)    (e). 

Penna.  R.  R.  v.  Beale,  73  Pa.  504— §228,  n.  (23)   (e). 
Penna.  R.  R.  v.  Berry,  68  Pa.  272— §228,  n.  (20)  (h) ;  n.  (21)  (h). 
Penna.  R.  R.  v.  Bock,  93  Pa.  427— §228,  n.  (20)  (h) ;  n.  (22)  (n). 
Penna.  R.  R.  v.  Boro.,  207  Pa.  180— §228,  n.  (6)   (r). 
Penna.  R.  R.  v.  Canal  Comrs.,  21  Pa.  9— §34 
Penna.  R.  R.  v.  Coal  Co.,  42  Pa.  Super.  187— §190,  n.  (13)  (u). 
Penna,  R.  R.  v.  Com.,  39  Pa.  403— §244,  n.  (1)  (c). 
Penna.  R.  R.  v.  Congregation,  53  Pa.  445— §48,  n.  (2)  (a). 
Penna,  R.  R.  v.  Fries,  7  W.  N.  C.  433— §228,  n.  (8)  (a),  (e). 
Penna.  R.  R.  v.  Butler,  57  Pa.  335— §228,  n.  (25)  (j). 
Penna.  R.  R.  v.  Goodman,  62  Pa.  329— §228,  n.  (21)   (c). 
Penna.  R.  R.  v.  McTighe,  46  Pa.  316— §228,  n.  (22)   (1). 
Penna.  R.  R.  v.  R.  R.,  219  Pa.  361— §228,  n.  (20)  (r),  (x). 
Penna.  R.  R.  v.  Werner,  89  Pa.  59— §228,  n.  (22)   (k). 
Penna.  R.  R.  v.  Zebe,  33  Pa.  318— §228,  n.  (22)  (e),  (h). 
Penna.  Pulp  Co.  v.  Stoughton,  106  Pa.  458— §48,  n.  (2)  (c). 
Pennock  v.  Kennedy,  153  Pa.  579— §74,  n.  (1)  (a). 
Penny  v.  Penny,  34  Pa.  Super.  88— §228,  n.  (18)   (b2). 
Pennypacker  v.  Dear,  166  Pa.  284— §242,  n.  (1)  (g). 
People's  Bank  v.  Denig,  131  Pa.  241— §228,  n.  (22)  (b). 
People's  Bank  v.  Stroud,  223  Pa.  33— §228,  n.  (18)  (g). 
People's  Ins.  Co.  v.  Hartshorne,  84  Pa.  453— §228,  n.  (24)   (z3). 
Pereyra's  Ap.,  126  Pa.  220— §43,  n.  (6)   (h). 

Perry  County  Poor  Directors  v.  Overseers,  110  Pa.  153 — §85,  n.  (1)  (b). 
Perry  Twp.  Overseers  v.  Overseers,  8  Pa.  Super.  640— §§85,  n.  (2)  (f)  j 

228,  n.  (18)   (p). 
Perry  Twp.  Road,  36  Pa.  Super.  131— §§43,  n.  (3)   (b2) ;  182,  n.  (4) 

(d). 

Pessano  v.  Eyre,  13  Pa.  Super.  157— §228,  n.  (23)   (1). 
Peters  v.  Garner,  183  Pa.  65— §117,  n.  (3)  (a). 

Peters  v.  Horbach,  4  Pa.  134— §§187,  n.  (4)  (b),  (c) ;  228,  n.  (11)  (h). 
Peterson  v.  R,  R.,  177  Pa.  335— §§11,  n.  (4)  (a) ;  220,  n.  (2). 
Peterson  Co.  v.  Blaisdell,  169  Pa.  636— §228,  n.  (20)  (z). 

661 


Pet-Pie  TABLE  OF  CASES. 


Peterson  v.  Speer,  29  Pa.  478— §228,  n.  (25)   (m). 

Petri  v.  Carracciolo,  33  Pa.  Super.  312— §147,  n.  (4)  (c),  (d),  (e). 

Pettit  v.  Clever,  219  Pa.  428— §43,  n.  (1)    (d). 

Pfaff  v.  Thomas,  3  Pa.  Super.  419— §74,  n.  (1)  (s). 

Pfeifer  v.  Rahiser,  2  Pa.  Super.  355— §150,  n.  (1)  (c). 

Pfoutz's  Case,  40  Pa,  Super.  130— §183,  n.  (6)   (d). 

Phelin  v.  Kenderdine,  20  Pa.  354— §§161,  n.  (5)  (g) ;  228,  n.  (25)  (v). 

Phila.  v.  Bilyeu,  36  Pa.  Super.  562— §§88,  n.   (1)    (a),   (b) ;  183,  n. 

(4)  (a). 

Phila.  v.  Cemetery  Co.,  147  Pa.  170— §228,  n.  (21)   (a). 
Phila.  v.  Christman,  6  Pa.  Super.  29— §§43,  n.  (3)  (r) ;  78,  n.  (1)  (a). 
Phila.  v.  Dungan,  124  Pa.  52— §182,  n.  (2)  (o). 
Phila.  v.  Institute,  177  Pa.  37— §§147,  n.  (4)   (d) ;  166,  n.  (1)   (i). 
Phila.  v.  Kates,  150  Pa.  30— §74,  n.  (1)  (r),  (s). 
Phila.  v.  Merklee,  159  Pa.  515— §§190,  n.  (1)   (b) ;  205,  n.  (2). 
Phila.  v.  Miller,  27  Pa.  Super.  11— §§43,  n,  (1)   (h) ;  126  n.  (5)   (a). 
Phila.  v.  Pemberton,  206  Pa.  73— §§43,  n.  (3)    (v2) ;  78,  n.   (1)    (b). 
Phila.  v.  Penna.  Co.,  214  Pa.  138— §§121,  n.  (2)  (f) ;  188,  n.  (1). 
Phila.  v.  Reading  R.  R.,  3  W.  N.  C.  492— §50,  n.  (5)   (a). 
Phila.  v.  Riddle,  25  Pa.  259— §190,  n.  (11) ;  n.  (12)  (a) ;  n.  (13)  (b). 
Phila.  v.  Weaver,  155  Pa.  74— §74,  n.  (1)   (s). 
Phila.  v.  Wellens,  19  Pa.  Super.  379— §228,  n.  (1)   (h). 
Phila.  Co.  v.  Hogan,  47  Pa.  244— §228,  n.  (23)   (h). 
Phila.  Co.  v.  United  Gas  Imp.  Co.,  180  Pa.  235— §228,  n.  (18)   (p2). 
Phila.  M.  &  S.  Rwy.  Co.'s  Petition,  203  Pa.  354— §43,  n.  (2)   (r). 
Phila.  Library  Co.  Ingham,  1  Whar.  72— §48,  n.  (1)   (t2). 
Phila.  Library  v.  Ingham,  1  Whar.  72— §228,  n.  (24)   (k). 
Phila  Library  Co.  v.  Ingham,  1  Whar.  72— §228,  n.  (24)    (w3). 
Phila.  Lying-in  Charity  v.  Hospital,  29  Pa.  Super.  420— §182,  n.  (4) 

(s2). 

Phila.,  etc.  R.  R.  v.  Adams,  89  Pa.  31— §228,  n.  (20)   (g). 
Phila,,  etc.  Ry.  v.  Ry.,  206  Pa.  343— §150,  n.  (2)   (a). 
Phila.  &  Read.  R.  R,  Co  v.  Getz,  113  Pa.  214— §228,  n.  (19)   (a). 
Phila.  &  Read.  R.  R.  v.  Snowden,  161  Pa.  201— §§43,  n.  (3)   (b),  (p) ; 

228,  n.  (24)  (w). 

Phila.  &  Read.  R.  R.  v.  Spearen,  47  Pa.  300— §228,  n.  (20)   (b),  (h). 
Philadelphia  &  Trenton  R,  R.  v.  Ry.,  206  Pa.  343— §183,  n.  (4)   (b). 
Phila.  Trust  Co.  v.  Railroad  Co.,  177  Pa.  205— §228,  n.  (21)   (h). 
Phila.  T.  &  S.  Co.  v.  Smith  Co.,  37  Pa.  Super.  149— §50,  n.  (4)   (a). 
Phila.,  W.  &  Bait.  R.  R.  v.  Alvord,  128  Pa.  42— §228,  n.  (20)   (d) ;  n. 

(23)    (e). 
Phila.,  Wash.  &  Bait.  R.  R.  v.  Conway,  112  Pa.  511— §228,  n.  (13)  (h) ; 

n.  (30)   (c). 

Phoenix  Ins.  Co.  v.  Pratt,  2  Bin.  308— §228,  n.  (20)   (h). 
Phoenix  Iron  Works  v.  Mullen,  25  Pa.  Super.  547— §110,  n.  (2)   (a). 
Phoenix  Press  v.  MacKenzie,  32  Pa.  Super.  183— §§182,  n.   (4)    (i) ; 

228,  n.  (18)   (g). 
Pierce  v.  Cloud,  42  Pa.  102— §228,  n.  (22)  (a). 

662 


TABLE  OF  CASES.  Pie-Pon 


Pierce  v.  Barney,  209  Pa,  132— §228,  n.  (24)  (p2). 
Pierson  v.  Duncan,  162  Pa.  187— §228,  n.  (20)  (b). 
Piper's  Ap.,  20  Pa.  67— §§182,  n.  (3)  (b) ;  228,  n.  (2)  (h) ;  n.  (25) 

(a). 

Pipher  v.  Lodge,  16  S.  &  R.  214— §228,  n.  (24)  (f2). 
Pister  v.  Asso.,  3  Pa.  Super.  50— §228,  n.  (20)  (g). 
Pittengen  v.  Kennedy,  148  Pa.  198— §§187,  n.  (1)  (b) ;  n.  (2)  (g) ; 

190,  n.   (12)    (a). 

Pittsburgh  Petition,  138  Pa.  401— §80,  n.  (4). 
Pittsburg,  etc.  R.  R.  v.  Caldwell,  74  Pa.  421— §228,  n.  (25)   (a). 
Pittsburg  v.  Maxwell,  179  Pa.  553— §§146,  n.  (2)  (g) ;  228,  n.  (1)  (b) ; 

n.  (17)   (a). 

Pittsburg  Bank  v.  Whitehead,  10  Watts  397— §228,  n.  (23)   (g). 
Pittsburg  Eng.  Co.  v.  Mfg.  Co.,  43  Pa.  Super.  485— §228,  n.  (29)   (e) ; 

Id,  n.  (24)   (J2). 

Pitts,  etc.  Ry.  v.  Evans,  53  Pa.  250— §228,  n.  (22)  (e). 
Pittsburg,  etc.  R.  R.  v.  Com,  66  Pa.  731— §228,  n.  (19)  (a). 
Pitts,  etc.  R.  R.  v.  Gamble,  204  Pa.  198— §228,  n.  (24)   (g3) 
Pittsburg  R.  R.  v.  Jones,  59  Pa.  433— §228,  n.  (1)   (i). 
Pittsburg  Railway  Co.  v.  Stokes,  4  W.  N.  C.  550— §228,  n.  (23)   (g). 
Pittsburg  Safe  Dep.  Co.  v.  Motheral,  8  Pa.  Super.  433— §228,  n.  (20) 

(j);  n.  (25)   (b). 
Pittsburg  Stove  Co.  v.  Penna.  Co,  208  Pa.  37— §§150,  n.  (1)  (a) ;  228, 

n.  (18)   (f2),  (g2). 
Pittsburgh  Supply  Co.'s  Tax,  38  Pa.  Super.  121— §§48,  n.  (1)    (J2) ; 

182,  n.   (4)    (p)    (w2).   . 

Pittsburg  Wagon  Works'  Est,  198  Pa.  250— §190,  n.  (12)  (k). 
Pittsburg  Wagon  Works'  Est,  204  Pa.  435— §126,  n.  (3)   (g) ;  n.  (4) 

(k). 
Pizzi  v.  Nardello,  23  Pa.  Super.  535— §187,  n.   (1)    (b),   (f),  (k) ;  n. 

(4)    (a). 

Plains  Twp.  Case,  206  Pa.  556— §182,  n.  (4)   (d). 
Plains  Twp.  Ap,  216  Pa.  556— §182,  a.  (4)  (d2). 
Plank-Road  Co.  v.  Rinemann,  20  Pa,  99— §§183,  n.  (2)    (c) ;  190,  n. 

(12)  (a);228,n.  (17)  (d). 

Plank-Road  Co.  v.  Ramage,  20  Pa.  95— §187,  n.  (4)  (b). 
Platt  v.  Coal  Mining  Co,  191  Pa.  215— §43,  n.  (3)   (b). 
Platt  v.  Coal  Mining  Co,  191  Pa.  210— §44,  n.  (6)   (b). 
Platt  Barber  Co.  v.  Groves,  193  Pa.  475— §§121,  n.  (2)    (b) ;  128,  n. 
(1);  131,  n.  (1)   (a);  136,  n.  (1);  138,  u.  (1)   (a);  140,  n.  (1) 
(a);n.  (3)  (b) ;  228,  n.  (18)   (q). 

Platz  v.  Township,  178  Pa.  601— §228,  n.  (20)   (b2) ;  n.  (23)   (k). 
Plucker  v.  Miller,  26  Pa.  Super.  495— §228,  n  (21)   (h). 
Plunketts'  Creek  Twp.  v.  Fairfield  Twp,  58  Pa.  209— §§146,  n.   (2) 

(a);  161,  n.  (4)  (i). 

Plymouth  Co.  v.  Wood  Co.,  203  Pa.  206— §228,  n.  (18)   (s). 
Pocono  Pines  Assembly  v.  County,  29  Pa.  Super.  36— §228,  n.   (18) 

(r2). 
Pontius  v.  Nesbit,  40  Pa.  309— §§43,  n.  (2)  (a2) ;  182,  n.  (2)  (k2). 

663 


Poo-Pul  TABLE  OF  CASES. 


Pool  v.  White,  171  Pa.  500— §§147,  n.  (4)   (d),  (k) ;  148,  n.  (1)   (a); 

155,  n.   (1)    (a). 

Pool  v.  White,  175  Pa.  459— §§161,  n.  (6)  (d) ;  228,  n.  (21)  (a). 
Poorman  v.  Smith,  2  S.  &  E.  464— §228,  n.  (19)   (a). 
Porter  v.  Seiler,  23  Pa.  424— §228,  n.  (21)  (a),  (u). 
Porter  v.  Lee,  16  Pa.  412— §228,  n.  (24)   (m). 
Portland  v.  Lewis,  2  S.  &  R.  197— §182,  n.  (2)  (y). 
Post  v.  Wallace,  110  Pa.  121— §§182,  n.  (2)   (d2) ;  228,  n.  (30)   (k). 
Postens  v.  Postens,  3  W.  &  S.  127— §228,  n.  (25)  (a). 
Pote's  Ap.,  106  Pa.  574— §§45,  n.  (2)   (c) ;  228,  n.  (24)  (h3). 
Potteiger  v.  Potteiger,  5  Sad.  398— §228,  n.  (21)    (a). 
Potter  v.  Graham,  8  Pa.  Super.  199— §161,  n.  (3)   (m). 
Pottstown  Boro.,  117  Pa.  538— §183,  n.  (2)   (c). 
Pottsville  v.  By.,  148  Pa.  175— §185,  n.  (1)   (h). 
Pottsville  Bank  v.  Cake,  12  Pa.  Super.  61— §§43,  n.  (7)   (q) ;  126,  n. 

(3)  (a);n.  (4)  (c). 
Pottsville  Boro.  v.  Gas  Co.,  39  Pa.  Super.  1— §§187,  n.  (1)   (b) ;  n.  (2) 

(a);  190,  n.   (13)    (a). 

Powell  v.  Gayley,  9  Pa.  Super.  405— §43,  n.  (3)   (1). 
Powel's  Est.,  209  Pa.  76— §38,  n.  (1)  (f),  (g). 
Powell's  Est.,  138  Pa.  322— §§183,  n.  (3)   (f) ;  228,  n.  (2)  (h). 
Powel's  Est.,  208  Pa.  505— §228,  n.  (18)   (q). 
Powell  v.  Derickson,  178  Pa,  612— §228,  n.  (23)   (g) ;  n.  (25)   (e) ;  n. 

(26)    (a),   (b). 

Powell  v.  Ins.  Co.,  2  Pa.  Super.  151— §228,  n.  (26)   (b). 
Powell  v.  Sedgwick,  5  Whar.  336— §228,  n.  (11)  (a). 
Power  v.  Frick,  2  Gr.  306— §43,  n.  (8)  (a). 
Powers  v.  McErran,  2  S.  &  E,  44— §228,  n.  (22)   (h). 
Powers  v.  Rich,  184  Pa.  325— §228,  n.  (21)   (a) ;  n.  (25)  (a). 
Pownall  v.  Steele,  52  Pa.  446— §§82,  n.  (1)   (a) ;  228,  n.  (24)   (12). 
Pratt 's  Est.,  35  Pa.  Super.  110— §228,  n.  (18)   (h),  (1). 
Prentice  v.  Hancock,  204  Pa.  128— §117,  n.  (2)   (a). 
Prescott  v.  Ins.  Co.,  1  Whar.  399— §228,  n.  (23)   (e). 
Prevost  v.  Nicholls,  4  Yeates,  479— §§228,  n.   (28)    (d) ;  n.   (30)    (1) ; 

232,  n.  (1)  (b). 

Price's  Est.,  45  Pa.  Super.  449— §192,  (n3). 
Price  v.  Coal  &  Coke  Co.,  208  Pa.  395— §43.  n.  (3)  (u),  (g2). 
Price  v.  Hamscher,  174  Pa.  73— §228,  n.  (21)   (a). 
Price  v.  Lancaster  Co.,  189  Pa.  95— §123,  n.  (1). 

Prindle  v.  Kountz,  15  Pa.  Super.  258— §228,  n.  (19  (a);  n.  (23)   (h). 
Pringle  v.  Pringle,  59  Pa.  281— §228,  n.  (24)  (k). 
Pritchett  v.  Cook,  G2  Pa.  193— §228,  n.  (31)   (d). 
Proper  v.  Luce.  3  P.  &  W.  65— §228,  n.  (24)   (g). 
Proper  v.  Campbell,  12  Dist.  203— §239,  n.  (2)    (f). 
Providence  Pipe  Co.  v.  Chase,  108  Pa.  319— §§66,  n.  (2)  (a),  (d) ;  182, 

n.  (3)  (a). 
Provident  Trust  Co.  v.  Phila.,  202  Pa.  78— §228,  n.  (15)   (a),  (b) :  n. 

(20)    (j),  (rj. 

Prudential  Tr.  Co.  v.  Hildebrand,  34  Pa,  Super.  249— §186,  n.  (2). 
Pulaski  Ave.  Case,  220  Pa.  276—126,  n.  (1)  (d). 

664 


TABLE  OF  CASES.  Pur-Rea 


Pure  Oil  Co.  v.  Terry,  16  Pa.  Super.  337— §242,  n.  (2)  (e). 
Puterbaugh's  Est.,  44  Pa.  Super.  102— §228,  n.  (18)   (k). 

Quaker  City  Bank  v.  Hepworth,  21  Pa.  Super.  566— §187,  n.  (1)   (i) ; 

n.  (4)   (f). 

Quakertown  Boro.,  3  Gr.  203— §§161,  n.  (4)   (q) ;  288,  n.  (24)   (n3). 
Quay's  Case,  189  Pa.  517— §§35,  n.  (1)   (b) ;  37,  n.  (2)  (c) ;  46,  n.  (1) ; 

n.  (5)  (a),  (b);108,n.  (2)  (c). 
Quick  v.  Miller,  103  Pa.  67— §228,  n.  (27)   (j). 
Quingley  v.  Ins.  Co.,  35  Pa.  Super.  51— §190,  n.  (14)   (b) 
Quigley  v  E.  R.,  210  Pa.  162— §228,  n.  (9)  (b). 
Quinn 's  License,  11  Pa.  Super.  554— §§183,  n.  (4)   (a);  228,  n.  (17) 

(a). 

Quinn  v.  Crowell,  4  Whar.  334— §161,  n.  (4)   (n). 
Quinn  v.  Transit  Co.,  224  Pa.  162— §228,  n.  (29)   (k). 
Quinn  v.  Woodhouse,  26  Pa.  333— §228,  n.  (15)   (a). 

Rabinowitz  v.  Kenah,  31  Pa.  Super.  334— §196,  n.   (1)    (a). 

Raby  v.  Cell,  85  Pa.  80— §228,  n.  (23)   (f). 

Radcliffe  v.  Herbst,  135  Pa,  568— §50,  n.  (4)   (a). 

Radigan's  Est.,  13  Pa.  Super.  131— §242,  n.  (1)   (p). 

Raeder  v.  Monks,  228  Pa.  269— §74,  n.  (1)   (s). 

Rafferty  v.  Donnelly,  197  Pa.  423— §197,  n.  (1)   (b). 

Rahn  Twp.  Dist.  v.  Coal  Co.,  221  Pa,  141— §228,  n.  (18)   (g). 

Rahn  v.  McElrath,  6  Watts,  151— §228,  n.  (19)  (a). 

Ralston  v.  Groff,  55  Pa.  276— §228,  n.  (21)  (a). 

Ramschasel's  Est.,  21  Pa.  Super.  497— §§183,  n.  (2)   (f) ;  185,  n.  (1) 

(k);  186,  n.  (1)    (b) ;  187,  n.  (1)    (b). 
Ramsey  v.  Ramsey,  15  Pa.  Super.  214— §228,  n.  (24)   (k4). 
Ranck  v.  Becker,  12  S.  &  R.  412— §43,  n.  (9)  (o). 
Ranck  v.  Becker,  13  S.  &  R.  41— §243,  n.  (1)  (a),  (b) ;  n.  (2)  (e) ;  n. 

(4)    (c). 

Ranck  v.  Witaker,  4  W.  N.  C.  69— §43,  n.  (3)   (e2). 
Rand  v.  King,  134  Pa.  641— §§42,  n.  (3) ;  48,  n.  (3) ;  n.  (4) ;  182,  n.  (1) 

(a),  (b);n.  (2)   (b) ;  n.  (4)   (e). 

Rarick  v.  McManomon,  17  Pa.  Super.  154— §228,  n.  (24  (m). 
Rauch  v.  Scholl,  68  Pa.  234— §228,  n.  (25)   (a). 
Rauschmeyer  v.  Bank,  1  C.  P.  Rep.  17— §11,  n.  (4)   (b). 
Raush  v.  Miller,  24  Pa.  277— §228,  n.  (19)   (a). 
Raymond  v.  Schoonover,  181  Pa.  Super.  636— §187,  n.  (1)   (b). 
Rea  v.  R.  R.,  229  Pa.  106— §228,  n.  (9)   (b). 
Read  v.  Husulton,  27  Leg.  Int.  198— §43,  n.  (5)   (z) ;  n.  (7)  (1). 
Readdy  v.  Borough,  137  Pa.  92— §§186,  n.  (1)  (a) ;  228,  n.  (22)  (a) ;  n. 

(23)   (h). 
Readdy  v.  Boro.,  137  Pa.  98— §§183,  n.  (2)  (s) ;  185,  n.  (1)  (f ) ;  187,  n. 

(1)   (b);n.  (4)   (a);  228,  n.  (19)   (a). 

Reading  R.  R.  v.  Johnson,  7  W.  &  S.  317— §228,  n.  (25)  (a). 
Reading  v.  Bentley,  2  Mona.  721— §43,  n.  (3)   (f). 
Reading  Co.  v.  Seip,  30  Pa.  Super.  330— §§185,  n.   (3)    (a) ;  186,  n. 

(1)    (a). 

665 


Rea-Rho  TABLE  OF  CASES. 


Ready's  Ap.,  99  Pa.  9— §228,  n.  (18)   (q). 

Reamer's  Ap.,  18  Pa.  510— §43,  n.  (6)  (k). 

Rearick  v.  Swinehart,  11  Pa.  233— §§161,  n.   (5)    (b),   (w) ;  228,  n. 

(11)    (a). 

Reber  v.  Schitler,  141  Pa.  640— §228,  n.  (20)   (c). 
Reber  v.  Herring,  115  Pa.  599— §228,  n.  (21)   (h). 
Reeee  v.  Rodgers,  40  Pa.  Super.  171— §228,  n.  (24)   (12). 
Reed's  Ap.,  71  Pa.  378— §§43,  n.    (1)    (b) ;  n.    (2)    (p) ;  66,  n.   (2) 

(d);  67  n.  (1)   (e) ;  182,  n.  (2)   (u). 
Reed  v.  Collins,  5  S.  &  R.  351— §§228,  n.  (8)   (a),  (q) ;  n.  (12)  (a) ;  n. 

(13)   (r);232,  n.  (1)   (h). 

Reed  v.  Fidelity  Co.,  189  Pa.  596— §§82,  n.  (1)  (b) ;  228,  n.  (24)  (12). 
Reed  v.  R.  R.,  210  Pa.  211— §228,  n.  (4)   (e) ;  n.  (9)   (a),  (b). 
Reed  v.  Reed,  30  Pa.  Super.  229— §61,  n.  (2)   (a). 
Reel  v.  Elder,  62  Pa.  308— §228,  n.  (23)   (h). 

Reel  v.  Martin,  12  Pa.  Super.  340— §228,  n.  (20)  (b),  (d),  (f),  (g2). 
Reep  v.  Wagner,  21  Pa.  Super.  268— §228,  n.  (20)  (a). 
Rees  v.  Berryhill,  1  Watts  263— §48,  n.  (1)    (s2). 
Rees  &  Sons  Co.  v.  Society,  44  Pa.  Super.  381— §228,  n.  (13)  (t). 
Reese  v.  Hershey,  163  Pa.  253— §228,  n.  (20)  (f2) ;  n.  (29)  (k). 
Reese  v.  Reese,  90  Pa.  89— §228,  n.  (20)   (a). 
Reeves  v.  R.  R.,  30  Pa.  454— §228,  n.  (19)  (a) ;  n.  (20)  (a),  (h). 
Reger  v.  Brass  Co.,  6  Pa.  Super.  375— §228,  n.  (4)   (i). 
Rehm  v.  Frank,  16  Pa.  Super.  175— §74,  n.  (1)   (s). 
Reichard's  License,  45  Pa.  Super.  606— §228,  n.  (1)   (k). 
Reichenback  v.  Ruddach,  121  Pa.  18— §161,  n.  (8)   (a),  (e). 
Reichenbach  v.  Rudach,  127  Pa.  564— §228,  n.  (21)    (h). 
Reigart  v.  Ellmaker,  14  S.  &  R.  121;  §147,  n.  (2)   (a). 
Reigel's  Ap.,  1  Walk.  72— §239,  n.  (1)   (g) ;  n.  (4)   (a). 
Reimer  v.  Stuber,  20  Pa.  458— §185,  n.  (2)    (a);  n.  (3)    (a);  n.   (4) 

(a);  n.   (5)    (a). 

Reiseek  v.  Lanahan,  10  Pa.  Super.  281— §43,  n.  (3)   (m). 
Reist  v.  Heilbrenner,  11  S.  &  R.  131— §23,  n.  (1)    (b). 
Renn  v.  Tallman,  25  Pa.  Super.  503— §228,  n.  (20)   (b),  (c) ;  n.  (21) 

(h). 

Renninger  v.  Thompson,  6  S.  &  R.  1— §228,  n.  (24)   (j4). 
Reno  v.  Shallenberger,  8  Pa.  Super.  436— §228,  n.  (4)  (a) ;  n.  (9)  (c) ; 

n.   (24)    (p2). 

Renovo  Overseers  v.  Overseers,  78  Pa.  301 — §85,  n.  (1)   (e). 
Renwick  v.  Richardson,  5  Pa.  Super.  202— §§74,  n.   (1)    (s) ;  228,  n. 

(24)    (z3). 

Repsher  v.  Watson,  17  Pa.  365— §228,  n.  (21)   (a) ;  n.  (23)   (i). 
RevelPs  Est.,  12  Dist.  138— §45,  n.  (3)   (n). 
Revell's  Est.,  28  C.  C.  225— §168,  n.  (2)  (a). 
Reynolds  v.  Lumber  Co.,  175  Pa.  437— §§43  n.   (7)    (d) ;  117,  n.   (4) 

(a). 

Reynolds  v.  Cridge,  131  Pa.  189— §187,  n.  (2)   (a). 
Rheem  v.  Allison,  2  S.  &  R.  113— §43,  n.  (9)  (h). 
Rhines  v.  Baird,  41  Pa.  256— §187,  n.  (4)    (b). 
Rhoad's  Ap.,  39  Pa.  186— §§45,  n.  (2)   (f ) ;  49,  n.  (2)   (c). 

666 


TABLE  OF  CASES.  Ric-Rob 


Rice  v.  Bank,  22  Pa.  118— §187,  n.  (1)  (b). 

Rice  v.  Burns,  9  Pa.  Super.  58— §187,  n.  (4)   (f). 

Rice  v.  Com.,  100  Pa.  28— §228,  n.  (20)  (h) ;  n.  (23)  (h) ;  n.  (25)  (u). 

Rice  v.  Olin,  79  Pa.  391— §228,  n.  (22)   (a),  (c) ;  n.  (23)  (h). 

Rich  v.  Black,  181  Pa.  290— §43,  n.  (8)   (b),  (c). 

Richard's  Case,  6  S.  &  R.  462— §45,  n.  (2)   (f). 

Richards  v.  Gas  Co.,  130  Pa.  37— §228,  n.  (4)    (f ) ;  n.  (20)    (h). 

Richards  v.  Willard,  176  Pa.  181— §228,  n.  (19)   (i). 

Richardson  v.  Gosser,  26  Pa.  335— §190,  n.  (14)  (b). 

Richardson  v.  Cassilly,  5  Watts  449— §239,  n.  (2)  (e). 

Richardson  v.  Richardson,  193  Pa.  279— §§44,  n.  (6)   (h) ;  242,  n.  (1) 

(n). 

Richardson  v.  Stewart,  4  Bin.  198— §161,  n.  (5)   (1). 
Rider  v.  Maul,  70  Pa.  15— §228,  n.  (22)    (k). 
Rider-Ericsson  Engine  Co.  v.  Fredericks,  25  Pa.  Super.  72 — §228,  n. 

(20)  (a);n.  (23)  (h). 

Ridge  Ave.  Ry.  v.  Phila.,  181  Pa.  592— §228,  n.  (18)   (s). 
Ridgely  v.  Spenser,  2  Bin.  70— §228,  n.  (20)  (12). 
Ridgway's  Account,  206  Pa.  587— §228,  n.  (18)   (m). 
Ridgway  v.  Grain  Co.,  228  Pa.  641— §50,  n.  (4)   (d). 
Ridgeway  v.  Longaker,  18  Pa.  215— §228,  n.  (22)   (a). 
Riegel  v.  Wilson,  60  Pa.  388— §228,  n.  (22)  (1) ;  n.  (23)  (e). 
Riesmeyer  v.  O'Day,  45  Pa.  Super.  67— §183,  n.  (2)   (f). 
Rigby's  Est.,  18  Pa.  Super.  5— §228,  n.  (18)    (q). 
Righter  v.  Rittenhouse,  3  Rawle  273— §228,  n.  (18)   (g). 
Rinely  v.  Ry.  228  Pa.  9— §126,  n.  (3)   (a). 
Ringwalt  v.  Brindle,  59  Pa.  51— §228,  n.  (24)   (z3). 
Riott  v.  Blackstone,  10  Pa.  Super.  591— §43,  n.  (2)   (c). 
Ripka  v.  Ins.  Co.,  36  Pa.  Super.  517— §§141,  n.   (1)    (1) ;  155,  n.  (1) 

(d) ;  163,  n.  (4)   (d) ;  185,  n.  (3)   (a) ;  187,  n.  (1)   (h) ;  196,  n. 

(3)   (b). 

Risheberger  v.  Wilson,  25  C.  C.  465— §1,  n.  (3). 
Rishel  v.  Rishel,  24  Pa.  Super.  303— §228,  n.  (18)   (b2),  (e2). 
Ritchie  v.  Hastings,  2  Yeates  433— §228,  n.  (11)   (e) ;  n.  (13)   (o). 
Riverton  Ferry  Co.  v.  Bridge  Co.,  1  Pa.  Super,  587— §228,  n.  (18)  (z). 
Roaring  Brook  Twp.  Road,  140  Pa,  632— §126,  n.   (1)    (a). 
Robb's  Nomination,  188  Pa.  212— §48,  n.  (1)   (v). 
Robb's  Ap.,  1  Penny.  436— §228,  n.  (1)  (b) ;  n.  (17)  (a). 
Robbarts  v.  Robbarts,  9  S.  &  R.  191— §§48,  n.   (1)    (o) ;  182,  n.  (3) 

(d). 

Robbins  v.  Farwell,  193  Pa.  37— §228,  n.  (25)   (e). 
Roberts's  Ap.,  92  Pa.  407— §43,  n.  (7)   (c) ;  n.  (8)   (d),  (f). 
.Roberts's  Est.,  163  Pa.  408— §228,  n.  (6)   (o). 
Roberts  v.  Austin,  5  Whar.  313— §228,  n.  (24)   (q). 
Roberts  Machine  Co.  v.  Kelly,  28  Pa.  Super.  540— §228,  n.  (24)   (z3). 
Robertson  v.  Reed,  47  Pa.  115— §228,  n.  (13)  (a). 
Robeson  v.  Gibbons,  2  Rawle  45— §228,  n.  (22)   (h). 
Robeson  v.  Pels,  202  Pa,  399— §228,  n.  (4)  (e) ;  n.  (9)  (a) ;  n.  (18)  (b). 
Robeson  v.  Whitesides,  16  S.  &  R.  320— §228,  n.  (24)  (J2). 

667 


Rob-Ros  TABLE  OF  CASES. 


Robinson's  Ap.,  1  W.  N.  C.  239— §44,  n.  (6)    (q). 

Robinson's  Ap.,  36  Pa.  811— §66,  n.  (3)   (c). 

Robinson's  Ap.,  11  Pa.  412— §228,  n.  (24)   (k4). 

Robinson's  Ap.,  62  Pa.  213— §229,  n.  (2)   (f). 

Robinson  v.  Buck,  71  Pa.  386— §228,  n.  (4)  (r) ;  n.  (11)  (h). 

Robinson  v.  Hodgson,  4  Leg.  Gaz.  339— §228,  n.  (15)  (f). 

Robinson  v.  Glancy,  69  Pa.  89— §45,  n.  (3)    (d). 

Robinson  v.  Narber,  65  Pa.  85— §§146,  n.  (2)    (h) ;  161,  n.  (4)    (k) ; 

228,  n.  (18)   (g). 
Robinson  v.  Snyder,  25  Pa.  203— §§161,  n.  (6)   (a) ;  228,  n.  (11)   (a) ; 

n.    (24)    (h2). 

Robison  v.  Trench,  22  W.  N.  C.  143— §228,  n.  (24)  (v). 
Rockwell  v.  Eldred  Boro.,  7  Pa.  Super.  95— §§82,  n.  (1)    (a) ;  228,  n. 

(24)   (12). 

Roddy's  Ap.,  99  Pa.  9— §228,  n.  (24)   (12). 
Rodger's  Petition,  194  Pa.  161— §29,  n.  (3). 
Rodgers  v.  Black,  15  Pa.  Super.  498— §§228,  n.  (4)    (m) ;  239,  n.  (2) 

(r). 

Rodgers  v.  Boro.,  2  Pa.  C.  C.  523— §§48  (A) ;  56,  n.  (3)  (a). 
Rodovinsky  v.  Knitting  Co.,  5  Pa.  Super.  636— §§183,  n.  (2)  (a),  (r) ; 

n.  (5)  (e),  (g) ;  185,  n.  (1)  (b) ;  n.  (2)  (a) ;  187,  n.  (4)   (f). 
Roebling's  Sons  Co.  v.  Constr.  Co.,  231  Pa.  261— §228,  n.   (24)    (n) ; 

Id.,  n.  (15)   (g). 

Roesler  v.  Phelps,  42  L.  I.  457— §228,  n.  (1)  (c). 
Roger's  Est.,  154  Pa.  217— §239,  n.  (1)   (e) ;  n.  (2  (i). 
Rogers  v.  Davidson,  142  Pa.  436— §228,  n.  (20)  (a)- 
Rogers  v.  Kichline,  36  Pa.  293— §228,  n.  (26)  (b). 
Rogers  v.  Ratcliffe,  23  Pa.  184— §§146,  n.  (2)   (h) ;  161,  n.  (4)   (m). 
Rogers  v.  Playford,  12  Pa.  181— §§43,  n.  (9)   (h) ;  51,  n.  (2)   (a) ;  n. 

(4)  (a);  228,  n.  (18)  (o2). 
Rogers  v.  Whiteley,  38  Pa.  137— §§183,  n.  (4)   (a) ;  228,  n.  (1)    (b) ; 

n.   (17)    (a). 

Rohrer's  Ap.,  62  Pa.  498— §43,  n.  (5)  (b). 

Roland  v.  Eckman,  12  Pa.  Super.  75— §228,  n.  (24)   (d2) ;  n.  (25)   (f). 
Roller  v.  Meredith,  4  Pa.  Super.  461— §183,  n.  (5)   (a). 
Rondinella  v.  Ins.  Co.,  24  Pa.  Super.  293— §228,  n.  (20)   (g),  (h) ;  n. 

(21)  (a),  (h);n.  (22)  (s2) ;  n.  (23)   (h). 
Roop  v.  Roop,  35  Pa.  59— §228,  n.  (13)   (b). 
Root  v.  Com.,  98  Pa.  170— §228,  n.    (22)    (t2). 
Rorabaugh's  Est.,  229  Pa.  377— §228,  n.  (18)   (k). 
Rosenagle  v.  Palmer,  186  Pa.  32— §228,  n.  (18)  (b). 
Rosenberry's  Ap.,  31  L.  I.  101— §228,  n.  (1)   (b) ;  n.  (17)   (a). 
Rosenberry  v.  Rosenberry,  180  Pa.  221— §§61,  n.  (2)   (a) ;  113,  n.  (1) 

(a). 
Rosenthal  v.  Ehrlicher,  154  Pa.  396— §§147,  n.  (4)    (c),  (d) ;  148,  n. 

(1)   (a) ;  n.  (2)   (a) ;  155,  n.  (1)   (m) ;  161,  n.  (1)   (d) ;  n.  (5) 

(b) ;  187,  n.  (1  (b) ;  n.  (4)   (a) ;  228,  n.  (11)   (a). 
Ross  Twp.  Road,  5  Pa.  Super.  85— §§183,  n.  (4)  (a),  (b) ;  288,  n.  (1). 

(a);  n.  (11)   (a);  n.  (15)   (a);  n.  (17)   (a);  n.  (24)   (e3). 
Ross  Water  Co.  v.  Water  Co.,  228  Pa.  235— §71,  n.  (1)  (g). 

668 


TABLE  OF  CASES.  Ros-San 


Rossbach  v.  Beebe,  205  Pa.  652— §228,  n.  (18)  (q),  (s). 

Rostraver  Twp.  Road,  21  Pa.  Super.  195— §§182,  n.  (4)  (k) ;  231,  n.  (1) 

(a). 

Roth  v.  Roth,  15  Pa.  Super.  192— §228,  n.  (21)  (h). 
Rothacker  v.  Phila.,  42  Pa.  Super.  408— §88,  n.  (1)   (a). 
Rothschild's  Sons  Co.  v.  McLaughlin,  12  Pa.  Super.  612— §155,  n.  (1) 

(i). 

Rothschilds  v.  McLaughlin,  6  Pa.  Super.  347— §228,  n.  (19)    (e) ;  n. 

(23)   (h). 

Rotograph  Co.  v.  Cressman,  41  Pa.  Super.  14— §228,  n.  (15)   (a). 
Roud  v.  Griffith,  11  S.  &  R.  130— §228,  n.  (13)  (r). 
Rounds  v.  Stevenson,  1  W.  N.  C.  429— §191,  n.  (1)  (c). 
Rouseville  Boro.,  12  Pa.  Super.  126— §§48,  n.  (1)  (f ) ;  56,  n.  (4)   (b) ; 

182,  n.  (4)  (w). 

Roush's  Est.,  23  Pa.  Super.  652— §196,  n.  (1)  (a). 
Rouvert  v.  Patton,  12  S.  &  R.  253— §228,  n.  (20)   (m2). 
Rovno  v.  Lorentz,  32  Pa,  Super.  162— §43,  n.  (9)   (b). 
Royer  v.  Tate,  1  P.  &  W.  227— §§43,  n.  (1)    (a) ;  44,  n.  (5)    (a) ;  n. 

(6)  («). 

Royse  v.  May,  93  Pa.  454— §187,  n.  (1)   (b). 
Ruch  v.  Morris,  28  Pa.  245 — §228,  n.   (15)    (a). 
Rudy  v.  My  ton,  19  Pa.  Super.  319— §71,  n.  (1)   (f). 
Rudy's  Ap.,  94  Pa.  338— §43,  n.  (6)   (q). 

Ruddy  v.  Repp,  19  Pa.  Super.  437— §185,  n.  (3)  (a) ;  n.  (5)  (a). 
Ruffner  v.  Hooks,  171  Pa.  531— §110,  n.  (4). 
Ruffner  v.  Wolfe,  14  Pa.  Super.  513— §228,  n.  (23)  (e). 
Ruhlman  v.  Com.,  5  Bin.  24— §182,  n.  (4)  (a). 
Rundell  v.  Kalbfus,  125  Pa.  123— §190,  n.  (4)  (a). 
Rupp  v.  Orr,  31  Pa.  517— §228,  n.  (2)   (h) ;  n.  (20)   (u) ;  n.  (29)   (f). 
Rush  v.  Cavenaugh,  2  Pa.  187— §228,  n.  (24)   (h). 
Russel  v.  Gray,  6  S.  &  R.  208— §243,  n.  (1)   (b) ;  n.  (4)  (a). 
Russell  v.  Ry.,  17  Pa.  Super.  195— §186,  n.  (1)    (c). 
Russel  v.  Reed,  27  Pa.  166— §66,  n.  (3)   (c). 

Sager  v.  Patterson,  15  Pa.  Super.  147— §228,  n.  (18)   (b). 

Sailor  Planing  Mill  v.  Moyer,  35  Pa.  Super  503— §43,  n.  (2)   (m) ;  n. 

(3)    (r),  (s). 
Sailer  v.  Reamer,  20  Pa.  Super.  597— §§186,  n.   (1)    (a);  189,  n.  (1) 

(b);190,  n.  (14)  (a) ;  196,  n.  (1)   (a). 
Saint  v.  Cornwall,  207  Pa.  270— §236,  n.  (2). 
Salem  Twp.  Road,  103  Pa.  251— §§43,  n.  (1)  (e) ;  126,  n.  (4)  (o). 
Sample  v.  Robb,  16  Pa.  305— §228,  n.  (19)   (g) ;  n.  (20)   (a). 
Sampson  v.  Com.,  5  W.  &  S.  385— §46,  n.  (7)   (a). 
Sampson  v.  Sampson,  4  S.  &  R.  329— §228,  n.  (2)  (i). 
Samson's  Est.,  22  Pa.  Super  93— §§43,  n.  (7)    (d)j  111,  n.  (1)    (a); 

117,  n.  (4)   (b). 

Samuel  v.  McKnight,  9  Pa.  Super.  352— §228,  n.  (21)  (a),  (h),  (m). 
Samuel  v.  Sota,  224  Pa.  432— §117,  n.  (3)   (f). 
Sanders  v.  Wagonseller,  19  Pa.  248— §185,  n.  (2)   (a). 
Sands  v.  Rolshouse,  3  Pa.  456— §228,  n.   (18)    (O2). 

669 


San-Sch  TABLE  OF  CASES. 


Sanker  v.  R.  R.,  205  Pa.  609— §190,  n.  (15)  (a). 

Sargeant  v.  Clark,  108  Pa.  588— §§43,  n.  (9)   (h) ;  51,  n.  (2)   (a). 

Sartwell  v.  Wilcox,  20  Pa.  117— §228,  n.  (23)   (e). 

Saucon  Twp  Supervisors  v.  Brodhead,  5  Sad.  587— §§43,  n.  (3)   (12) ; 

126,  n.  (4)   (o). 

Sauer  v.  Mollinger,  138  Pa.  338— §186,  n.  (2). 
Sauerman  v.  Weckerly,  17  S.  &  R.  116— §228,  n.  (13)   (b). 
Saul  v.  Scranton,  9  Dist.  156— §9,  n.  (7). 
Savage  v.  Enerman,  70  Pa.  315— §228,  n.  (3)  (a) ;  n.  (6)  (a). 
Savelle  v.  Melley,  27  Pa.  Super.  69— §228,  n.  (23)   (1). 
Savings  Bank  v.  Hosier,  199  Pa.  375— §66,  n.  (2)  (a). 
Sawtelle's  Ap.,  84  Pa.  306— §228,  n.  (18)  (f). 
Saxton's  Est.,  195  Pa.  459— §§189,  n.  (1)   (b) ;  193,  n.  (1)    (a);  198, 

n.  (1)   (a). 

Sayre  v.  Schroeder,  2  Penny.  79— §228,  n.  (19)   (a). 
Sayres  v.  Com.,  88  Pa.  291— §46,  n.  (9)   (b). 
Scanlon  v.  Suter,  158  Pa.  275— §§82,  n.  (1)    (b) ;  n.  (2)   (a) ;  228,  n. 

(24)   (12). 

Schaifer's  Est.,  155  Pa.  250— §§45,  n.  (3)   (p) ;  228,  n.  (24)   (f4). 
Scheaffer  v.  Lensening,  182  Pa.  634— §228,  n.  (22)   (a). 
Scheetz's  Ap.,  35  Pa.  88— §228,  n.  (24)   (q3). 
Schellentrager  v.  O'Donnell,  44  Pa.  Super.  431— §183,  n.  (4)  (b). 
Schenkel  v.  Traction  Co.,  194  Pa.  182— §228,  n.  (9)   (b). 
Schilling  v.  Durst,  42  Pa.  126— §228,  n.  (23)  (e). 
Schlecht's  Ap.,  60  Pa,  172— §44,  n.  (5)  (c) ;  71,  n.  (1)  (a),  (b). 
Schmidt  v.  Baizley,  184  Pa.  527— §§150,  n.  (1)  (b) ;  228,  n.  (18)  (f2). 
Schmidt  v.  McGill,  120  Pa.  405— §228,  n.  (19)   (a). 
Schmidt  Brew  Co.  v.  Transit  Co.,  42  Pa.  Super.  168— §§88,  n.  (1)  (a) ; 

155,  n.  (1)    (a). 

Schmoyer  v.  Schmoyer,  17  Pa.  520— §228,  n.  (29)   (c). 
Schmuck  v.  Hartman,  222  Pa.  190— §§11,  n.   (3)   (a) ;  42,  n.  (1)   (a), 

(c);  182,  n.  (3)   (c) ;  n.  (4)   (a),  (p),  (f2). 
Schnable  v.  Doughty,  3  Pa.  392— §228,  n.  (24)   (a2). 
Schneider  v.  Bates,  37  Pa.  Super.  432— §43,  n.  (9)   (b). 
Schober  v.  Mather,  49  Pa.  21— §228,  n.  (30)  (f). 
Shock  v.  Light  Co.,  17  Dist.  561— §§167,  n.  (1)   (c),  (e) ;  168,  n.  (1) 

(b);174,n.  (2)  (a). 

Schreppe  v.  Com.,  65  Pa.  51— §151,  n.  (1)   (a). 
Schofield  v.  Ferreas,  46  Pa.  438— §185,  n.  (1)   (i). 
Schofield  v.  Lafferty,  17  Pa.  Super.  8— §228,  n.  (30)   (b). 
Scholtz  v.  Scholtz,  22  Pa.  Super.  Ill— §228,  n.  (23)  (h). 
Schomaker  v.  Dean,  201  Pa.  439— §74,  n.  (1)  (c). 
Schondorf  v.  Griffith,  13  Pa.  Super.  580— §187,  n.  (4)  (a). 
Schonhardt  v.  R.  R.,  210  Pa.  224— §228,  n.  (25)   (b). 
Schoning  v.  Yard,  88  Pa.  286— §228,  n.  (22)   (a). 
Schrenkeinsen  v.  Kishbaugh,  162  Pa.  45— §§126,  n.   (4)    (p) ;  127,  n. 

(1)   (a). 

Schrimpton  v.  Bertolet,  155  Pa.  638— §228,  n.  (23)  (j) ;  n.  (24)  (c),  (o). 
Schriver  v.  Eckenrode,  94  Pa.  456— §§67  n.  (1)   (c) ;  228,  n.  (6)   (j) ; 

n.  (25)   (s). 

670 


TABLE  OF  CASES.  Sch-Sel 


Schubkagel  v.  Dierstein,  131  Pa.  46— §§82,  n.  (1)  (a) ;  228,  n.  (24)  (12). 

Schuler  v.  R.  R.,  3  Whar.  555— §182,  n.  (4)   (m). 

Schultz  v.  Bear  Creek  Co.,  174  Pa.  287— §43,  n.  (3)   (k). 

Schultz 's  Ap.,  6  Sad.  300— §190,  n.  (12)  (a). 

Schulze  v.  Schulze,  33  Pa.  Super.  325— §228,  n.  (18)  (b2). 

Schuylkill,  etc.  Coal  Co.  v.  French,  81 V2  Pa.  366— §228,  n.  (20)  (a). 

Schuylkill,  etc.  Ry.  Co.  v.  Stocker,  128  Pa.  233— §228,  n.  (21)  (a). 

Schuylkill  Nav.  Co.  v.  Thoburn,  7  S.  &  R.  411— §182,  n.  (2)  (x). 

Schwab  v.  Bickel,  11  Pa.  Super.  312— §228,  n.  (18)   (t). 

Schwartz's  Ap.,  21  W.  N.  C.  246— §66,  n.  (2)  (a);  n.  (3)   (e). 

Schwartz  v.  Oil  Co.,  164  Pa.  415— §239,  n.  (2)  (m). 

Schweitzer  v.  Williams,  43  Pa.  Super.  202— §228,  n.  (22)   (y) ;  n.  (25) 

(a2);  n.  (29)   (m). 

Schwenk  v.  Co.,  26  Pa.  281— §185,  n.  (2)    (a). 
Schwenk  v.  Montg.  Co.,  26  Pa.  281— §185,  n.  (3)   (a);  n.  (4)   (a);  n. 

(5)    (a). 

Schwenk  v.  County,  26  Pa.  281— §187,  n.  (1)   (b). 
Schwenk  v.  Kehler,  122  Pa.  67— §228,  n.  (21)  (h). 
Schwilke's  Ap.,  100  Pa.  628— §45,  n.  (2)   (d),  (e) ;  n.  (3)   (a). 
Scott's  Pet.,  231  Pa.  311— §228,  n.  (18)   (g). 
Scott  v.  Carl,  24  Pa.  Super.  460— §228,  n.  (24)   (p3). 
Scott  v.  Baker,  37  Pa.  330—228,  n.  (25)  (w). 
Scottish  Asso.  v.  Trust  Co.,  195  Pa.  45— §228,  n.  (23)    (1). 
Scranton  v.  Barnes,  147  Pa.  461— §82,  n.  (1)   (a)- 
Scranton  Building  Association  v.  Rauck,  9  Sad.  619 — §§43,  n.  (9)   (1) ; 

228,  n.  (30)  (m). 

Scranton  v.  Stokes,  28  Pa.  Super.  437— §78,  n.  (3)   (a). 
Scranton  Sewer,  213  Pa.  4— §§56,  n.  (7)    (a) ;  80,  n.  (3)    (a) ;  97,  n. 

(1);100,  n.  (1);126,  n.  (2)  (a). 
Scranton  v.  Barnes,  147  Pa.  461— §228,  n.  (24)   (12). 
Scranton  School  Dist.  v.  Simpson,  133  Pa.  202— §228,  n.  (27)  (a) . 
Seabrook  v.  Swarthmore  College,  65  Pa.  74— §77,  n.  (2)   (c). 
Seagrave  v.  Lacy,  28  Pa.  Super.  586— §§43,  n.  (9)  (b) ;  74,  n.  (1)  (p) ; 

141,  n.  (1)  (a),  (j). 

Sears  v.  Trust  Co.,  228  Pa.  126— §228,  n.  (18)   (m). 
Sebring  v.  Weaver,  42  Pa.  Super.  588— §185,  n.  (2)    (a) ;  Id.,  n.   (4) 

(a);  Id.,  n.  (5)   (a). 

Second  Street,  161  Pa.  571— §56,  n.  (6)  (b). 
Second  Nat,  Bank  v.  Coal  Co.,  140  Pa.  128— §185,  n.  (1)  (h). 
Security  S.  &  L.  Asso.  v.  Anderson,  172  Pa.  305— §50,  n.  (2)   (a) ;  n. 

(4)  (a). 

Sedlinger's  Ap.,  1  Pa.  Super.  221— §117,  n.  (1)  (c). 
Seibert's  Ap.,  2  W.  N.  C.  557— §§228,  n.  (28)  (i) ;  232,  n.  (2)  (a),  (b). 
Seibert's  Est.,  4  Pa.  Super.  514— §228,  n.  (18)   (q). 
Seifred  v.  R.  R.,  206  Pa.  399— §§185,  n.  (2)   (c) ;  228,  n.  (22)   (y). 
Seigle  v.  Louderbansrh,  5  Pa.  490— §228.  n.  (20)   (d). 
Selin  v.  Snyder,  11  S.  &  R.  319— §§183,  n.  (4)   (g) ;  228,  n.  (22)   (k). 
Sellers  v.  Burk,  47  Pa.  344— §43,  n.  (2)  (c). 
Sellers  v.  Jones.  22  Pa.  423— §228,  n.  (20)   (e) :  n.  (23)   (h). 
Selser  v.  Roberts,  105  Pa.  242— §228,  n.  (23)   (e). 

67I 


Sel-Shi  TABLE  OF  CASES. 


Seltzer  v.  Brundage,  21  Mona.  426— §228,  n.  (20)   (j). 

Senft  v.  Mcllvain,  43  Pa.  Super.  518— §183,  n.  (3)   (i) ;  page  524,  Ap. 

Senseman's  Ap.,  21  Pa.  331— §45,  n.  (2)  (c). 

Sequin's  Ap.,  13  W.  N.  C.  423— §45,  n.  (2)   (i) ;  n.  (3)  (1). 

Serf  ass  v.  Dreisbach,  141  Pa.  142— §228,  n.  (19)  (a). 

Serf  ass  v.  Stevenson,  8  Pa.  Super.  519— §242,  n.  (1)  (1). 

Sergeant  v.  Martin,  133  Pa.  122— §228,  n.  (20)  (j),  (k),  (p). 

Seventh  St.  Sewer  Case,  35  Pa.  Super.  484— §80,  n.  (6)   (a). 

Sewickley  Boro.,  36  Pa.  80— §228,  n.  (24)   (u3). 

Seymour  v.  Herbert,  2  W.  N.  C.  363— §233,  n.  (1)   (c). 

Shaeffer  v.  Kreitzer,  6  Bin.  430— §228,  n.  (20)  (12). 

Shaeffer  v.  Landis,  1  S.  &  R.  449— §228,  n.  (22)  (h). 

Shaffer  v.  Kintzer,  1  Bin.  537— §228,  n.  (8)   (o). 

Shaffer  v.  Coleman,  35  Pa.  Super.  386— §228,  n.  (29)   (i). 

Shaffer  v.  Iron  Co.,  5  Sad.  104— §228,  n.  (22)   (d2). 

Shainline's  Ap.,  2  Walk.  325— §43,  n.  (9)    (i). 

Shamburg  v.  Abbott,  121  Pa.  443— §190,  n.  (14)    (a). 

Shamokin  Co.  v.  John,  18  Pa.  Super.  498— §§11,  n.  (4)  (c) ;  213,  n.  (1). 

Shanahan  v.  Ins.  Co.,  6  Pa.  Super.  65— §§187,  n.  (1)   (b) ;  n.  (4)   (f ) ; 

228,  n.  (9)   (b);n.  (24)   (p2). 

Shannon  v.  McHenry,  219  Pa.  267— §88,  n.  (3)   (a). 
Shannon  v.  Collhepp,  37  Pa.  Super.  241— §186,  n.  (1)  (a). 
Shannon  v.  Castner,  21  Pa.  Super.  294— §228,  n.  (15)  (a) ;  n.  (25)  (s). 
Shapley  v.  Garey,  6  S.  &  K.  539— §126,  n.  (3)  (j). 
Sharon  Hill  Boro.,  140  Pa.  250— §56,  n.  (4)   (b). 
Sharp's  Ap.,  3  Gr.  260— §43,. n.  (6)   (y). 
Sharp  v.  Erie,  2  Sad.  480— §228,  n.  (21)   (e). 
Sharp  v.  Emmet,  5  Whar,  288— §228,  n.  (24)   (a2). 
Shaver  v.  McCarthy,  110  Pa.  339— §228,  n.  (20)   (c),  (h) ;  n.  (21)  (j). 
Shaw's  Ap.,  46  Pa.  407— §66,  n.  (4)  (a). 
Shaw  v.  Boyd,  12  Pa.  215— §228,  n.  (12)   (b) ;  n.  (28)   (b). 
Shaw  v.  Redmond,  11  S.  &  R.  27— §228,  n.  (13)   (b). 
Shea  v.  Wells,  8  Pa.  Super.  511— §50,  n.  (1) ;  n.  (4)   (a). 
Sheaffer's  Ap.,  100  Pa.  379— §71,  n.  (1)  (f). 
Sheaffer  v.  Sensenig,  182  Pa.  634— §228,  n.  (20  (a). 
Sheehan's  Est.,  24  Pa.  189— §228,  n.  (18)   (k). 
Sheehan  v.  Rosen,  12  Pa.  Super.  298— §228,  n.  (21)   (a) ;  n.  (24  (j2) ; 

n.  (26)   (d). 

Shellenberger  v.  R.  R.,  218  Pa.  159— §228,  n.  (24)   (n4). 
Shenandoah  Boro.  v.  Erdman,  21  W.  N.  C.  553— §228,  n.  (24)  (12). 
Shenango  Twp.  v.  Wayne  Twp.,  34  Pa.  184— §§182,  n.  (4)  (e) ;  183,  n. 

(6)  (c);228,n.  (12)  (e). 

Shenk's  Account,  5  Watts  84— §229,  n.   (1)   (a). 
Shepherd  v.  Busch,  154  Pa.  149— §228,  n.  (25)  (a). 
Sherer  v.  Bank,  33  Pa.  134— §228,  n.  (30)  (f). 
Sheridan  v.  Abattoir  Co.,  214  Pa.  115— §187,  n.  (1)   (b),  (i),  (k) ;  n. 

(4)   (f). 

Sherwood's  Est.,  206  Pa.  465— §§126,  n.  (4)   (1) ;  228,  n.  (31)  (b). 
Shetler's  Ap.,  7  Pa.  Super.  548— §231,  n.  (1)  (a). 
Shiffer's  Ap.,  4  Penny.  512— §67,  n.  (1)   (g). 

672 


TABLE  OF  CASES.  Shi-Sim 


Shimer's  Ap.,  10  L.  I.  124— §45,  n.  (3)   (t). 

Shimp's  Est.,  197  Pa.  128— §228,  n.  (18)    (q). 

Shimp  v.  Gray,  41  Pa.  Super.  542— §50,  n.  (6)    (c). 

Shirk  v.  Mingle,  13  S.  &  R.  29— §228,  n.  (13)  (f). 

Shisler  v.  Keavey,  75  Pa.  79— §§43,  n.  (9)    (h) ;  51,  n.  (2)   (a) ;  146, 

n.  (2)   (h). 

Shlippy  v.  Foust,  3  Walk.  56— §190,  n.  (12)  (a). 
Shoe  v.  Twp.,  3  Pa.  Super.  137— §48,  n.  (5)  (c). 
Shoemaker's  Case,  2  Pa.  Super.  27— §53,  n.  (3). 
Shoemaker's  Ap.,  175  Pa.  159— §§107,  n.  (1) ;  109,  n.  (1). 
Shoenberger's  Exrs.  v.  Hackman,  37  Pa.  87— §228,  n.  (13)  (f). 
Shoenberger  v.  Zook,  34  Pa.  24— §228,  n.  (13)   (b). 
Shollenberger  v.  Brinton,  52  Pa.  9— §228,  n.  (1)   (e). 
Sholly  y.  Diller,  2  Rawle  177— §228,  n.  (24)  (k2). 
Shoneman  v.  Fegley,  14  Pa.  376— §228,  n.  (21)   (a). 
Short  v.  Messenger,  126  Pa.  637— §228,  n.  (22)   (o2). 
Short  v.  Willing,  32  L.  I.  282— §182,  n.  (2)  (m). 
Shortz  v.  Quigley,  1  Bin.  222— §161,  n.  (4)   (c). 
Shortz  v.  Unangst,  3  W.  &  S.  438— §161,  n.  (5)  (i). 
Shoup  v.  Shoup,  205  Pa.  22— §§42  n.  (3) ;  48,  n.  (4) ;  182,  n.  (4)  (g2) ; 

228,  n.  (24)  (b2),  (b4),  (c4). 

Shovlin  v.  Com.,  106  Pa.  369— §228,  n.  (20)  (a) ;  n.  (21)   (a). 
Showers  v.  Showers,  27  Pa.  485— §182,  n.  (2)   (c). 
Shrader  v.  Glass  Co.,  179  Pa.  623— §228,  n.  (20)   (g). 
Shrewsbury  Twp.  Poor  Dist.  v.  Dist.,  33  Pa.  Super.  378— §85,  n.  (2) 

(d). 

Shuman's  Est.,  45  Pa.  Super.  587— §§43,  n.  (6)  (z) ;  228,  n.  (15)  (a). 
Shultz  v.  Seibel,  209  Pa.  27— §228,  n.  (25)   (e). 
Sibbald's  Est.,  Brightly  No.  P.  488— §43,  n.  (7)  (d). 
Sibley  v.  Robertson,  212  Pa.  24— §§147,  n.  (4)  (f),  (j) ;  148,  n.  (2)  (b). 
Sicard  v.  Peterson,  3  S.  &  R.  468— §§43,  n.  (2)   (q) ;  182,  n.  (2)   (j). 
Sidney  Sch.  Furniture  Co.  v.  School  Dist.,  130  Pa.  76— §228,  n.  (22) 

(k). 
Sidney  Sch.  Furniture  Co.  v.  School  Dist.,  122  Pa.  494 §228,  n. 

(23)    (g). 
Sidney  Sch.  Furniture  Co.  v.  Warsaw  Sch.  Dist.,  158  Pa.  35— §228,  n. 

(25)  (h). 

Sidwell  v.  Evans,  1  P.  &  W.  383— §228,  n.  (23)  (1). 
Silliman  v.  Whitmer,  173  Pa.  401— §§164,  n.  (2) ;  179,  n.  (1)  (a). 
Silliman  v.  Whitmer,  11  Pa.  Super.  243— §187,  n.  (2)   (i). 
Silliman  v.  Kuhn,  142  Pa.  461— §199,  n.  (3). 
Silvergood  v.  Storrick,  1  Watts  532— §182,  n.  (4)  (b). 
Simes  v.  Blair,  5  W.  N.  C.  235— §228,  n.  (23)   (g). 
Simmond's  Est.,  19  Pa.  439— §228,  n.  (15)   (a). 
Simmons  v.  R.  R.,  199  Pa.  232— §228,  n.  (21)   (a). 
Simpson  v.  Carroll,  41  Pa.  Super.  343— §186,  n.  (1)   (a). 
Simpson  v.  Marshall,  31  P.  L.  J.  337— §185,  n.  (3)  (a). 
Simpson  v.  McBeth,  4  Watts  409— §228,  n.  (20)   (h) ;  n.  (23)   (1). 
Simpson  v.  Myers,  197  Pa.  522— §187,  n.  (4)   (a). 
Simpson  v.  Meyers,  197  Pa.  522— §228,  n.  (4)  (i),  (j). 

673 
43 


Sim-Smi  TABLE  OF  CASES. 


Simpson  v.  Wray,  7  S.  &  R.  336— §228,  n.  (22)  (h). 
Sims  y.  Hampton,  1  S.  &  E.  411— §126,  n.  (3)  (c). 
Singmaster's  Ap.,  86  Pa.  169— §§43,  n.  (6)  (d) ;  190,  n.  (12)  (k), 

(n);  228,  n.   (18)    (q). 
Sipe  v.  R.  R.,  222  Pa.  400— §§161,  n.  (3)   (i) ;  183,  n.  (2)   (f ) ;  187,  n. 

(D   (b). 

Skidmore  v.  Bradford,  4  Pa.  296— §228,  n.  (24)  (z3). 
Skinner  v.  Robeson,  4  Yeates  375— §§43,  n.  (2)  (x) ;  182,  n.  (2)   (q2). 
Slater  v.  Slater,  209  Pa.  194— §197,  n.  (1)   (b). 

Slattery  v.  Supreme  Tent,  etc.,  19  Pa.  Super.  108— §228,  n.  (24)   (p2). 
Slaymaker  v.  St.  John,  5  Watts  27— §228,  n.  (22)   (h). 
Slinghuff  v.  Sisler,  193  Pa.  264— §§43,  n.   (3)    (q) ;  182,  n.  (4)    (h) ; 

228,  n.  (24)   (x). 

Slippery  Rock  Twp.  Dist.,  222  Pa.  538— §182,  n.  (4)   (v2). 
Sloan's  Case,  8  Watts  194— §228,  n.  (24)   (m4). 
Sloan  v.  James,  13  Pa.  Super.  399— §185,  n.  (3)   (a). 
Slocum's  Ap.,  12  W.  N.  C.  84— §§90,  n.  (1);  228,  n.  (24)   (g3). 
Sloss-Sheffield  Co.  v.  Iron  Co.,  46  Pa.  164— §50,  n.  (14)  (a). 
Smead  v.  Stuart,  194  Pa.  578— §§163,  n.  (4)   (a) ;  169,  n.  (1)  (a) ;  242, 

n.  (1)   (o). 

Smith's  Est.,  207  Pa.  604— §228,  n.  (24)   (m4). 
Smith  v.  Bank,  104  Pa.  518— §228,  n.  (22)  (n). 
Smith  v.  Bank,  15  W.  N.  C.  326— §190,  n.  (12)  (i). 
Smith  v.  Borough,  3  Pa.  Super.  495 — §228,  n.  (18)   (g). 
Smith  v.  Bouvier,  70  Pa.  325— §228,  n.  (22)  (a). 
Smith  v.  Com.,  14  S.  &  R.  69— §43,  n.  (9)  (q). 
Smith  v.  Craig,  2  Pa.  153— §228,  n.  (15)  (g). 
Smith  v.  Ege,  52  Pa.  419— §190,  n.  (12)  (a). 
Smith  v.  Frazier,  53  Pa.  226— §228,  n.  (24)   (J2). 
Smith  v.  Hewson,  1  Am.  L.  Reg.  441— §228,  n.  (30)   (f). 
Smith  v.  Hine,  179  Pa.  203— §228,  n.  (21)   (h). 
Smith  v.  Hutchison,  3  Walk.  254— §228,  n.  (24)   (p4). 
Smith  v.  Jack,  2  W.  &  S.  101— §43,  n.  (9)   (1). 
Smith  v.  Latour,  18  Pa.  243— §228,  n.  (22)   (j2). 
Smith  v.  Meldren,  107  Pa.  348— §228,  n.  (20)   (a). 
Smith  v.  Myler,  22  Pa.  36— §228,  n.  (24)   (a2). 
Smith  v.  R.  R.,  232  Pa.  456— §58  (A),  appendix,  p.  513. 
Smith  v.  Ramsay,  6  S.  &  R.  573— §164,  n.  (2). 

Smith  v.  Reiff,  20  Pa.  364— §§43,  n.  (5)  (p) ;  n.  (6)  (q) ;  66,  n.  (4)  (a). 
Smith  v.  Sharp,  5  Watts  292— §239,  n.  (1)  (a). 
Smith  v.  Tome,  68  Pa.  158— §187,  n.  (1)   (f). 
Smith  v.  Twp.,  35  Pa.  Super.  507— §48,  n.  (5)  (c). 
Smith  v.  Wildman,  194  Pa.  294— §225,  n.  (1)   (a). 
Smith  v.  Van  Home,  72  Pa.  207— §88,  n.  (1)  (a). 
Smith  v.  Smith,  15  Pa.  Super.  366— §228,  n.  (18)   (b2). 
Smith  v.  Times  Publishing  Co.,  178  Pa.  481— §§147,  n.  (4)    (c),  (d) ; 

148,  n.  (1)   (a) ;  228,  n.  (4)   (a),  (e) ;  n.  (9)   (a),  (b)  j  n.  (24) 

(q2). 

Smith  v.  Township,  25  Pa.  Super.  234— §228,  n.  (21)  (a). 
Smith  v.  Walter,  125  Pa.  453— §228,  n.   (20)    (h). 

674 


TABLE  OF  CASES.  Smu-Spe 


Smucker  v.  R.  R.,  6  Pa.  Super.  521— §228,  n.  (21)   (a). 

Smull  v.  Jones,  6  W.  &  S.  122— §228,  n.  (26)   (b). 

Smyth  v.  Craig,  3  W.  &  S.  14— §82,  n.  (3)   (a). 

Snevely  v.  Egle,  1  W.  &  S.  480— §228,  n.  (15)  (a). 

Snevely  v.  Jones,  9  Watts  322— §228,  n.  (19)  (a). 

Snively  v.  Twp.,  218  Pa.  249— §48,  n.  (5)  (c). 

Snodgrass's  Ap.,  96  Pa.  420— §45,  n.  (3)   (d). 

Snowden  v.  Warder,  3  Rawle  101— §161,  n.  (5)   (m). 

Snyder  v.  May,  19  Pa.  233— §185,  n.  (1)   (b). 

Snyder  v.  Brown,  197  Pa.  450— §71,  n.  (1)   (d). 

Snyder  v.  Flanigan,  (S.  C.)  6  Leg.  Rep.  11— §43,  n.  (3)  (s2). 

Snyder  v.  Haltor,  6  C.  C.  418— §43,  n.  (9)  (c). 

Snyder  v.  Berger,  18  W.  N.  C.  490— §228,  n.  (23)  (i). 

Snyder  v.  Karney,  198  Pa.  356— §228,  n.  (18)   (s). 

Snyder  v.  Loy,  4  Pa.  Super.  201— §228,  n.  (22)  (w). 

Snyder  v.  Smith,  224  Pa.  36— §228,  n.  (18)  (g). 

Snyder  v.  Steinmatz,  6  Pa.  Super.  341— §228,  n.  (23)    (h). 

Snyder  v.  Wilt,  15  Pa.  59— §228,  n.  (23)   (e). 

Sober  v.  Mooney,  48  Pa.  Super.  92,  96— §58  (A),  appendix,  p.  523. 

Soden  v.  Wheaton,  6  C.  C.  416— §43,  n.  (9)   (c). 

Solts's  Ap.,  4  W.  N.  C.  298— §§190,  n.  (12)  (j) ;  202,  n.  (1)  (a),  (b). 

Somer  v.  Huber,  183  Pa.  162— §228,  n.  (20)   (c2). 

Sommer  v.  Gilmore,  168  Pa.  117— §228,  n.  (20)   (j),  (k) ;  n.  (22)   (e) 

(h). 

Sommers  v.  Harvey,  1  Pa.  Super.  318 — §146,  n.  (2)   (h). 
Sommer  v.  Sommer,  10  Lane.  Bar.  81— §243,  n.  (3)  (b) ;  n.  (5)  (a). 
Sondheimer  v.  Hoover,  144  Pa.  221— §228,  n.  (17)  (a). 
Sopherstein  v.  Bertels,  178  Pa.  401— §187,  n.  (1)   (b). 
Sopp  v.  Winpenny,  68  Pa.  78— §228,  n.  (1)  (j) ;  n.  (2)  (i) ;  n.  (4)  (p). 
Sorg  v.  German  Congregation,  63  Pa.  156— §§161,  n.  (5)   (a) ;  187,  n. 

(1)   (a) ;  190,  n.  (12)   (a) ;  198,  n.  (1)   (c) ;  228,  n.  (17)   (d) ;  n. 

(24)    (e2). 

Souder's  Ap.,  57  Pa.  498— §§43,  n.  (5)  (g) ;  n.  (9)  (m) ;  66,  n.  (3)  (d). 
South  Lebanon  Twp.  School  Dist.,  22  Pa.  Super.  330— §48,  n.  (1)  (i). 
Southwest  Gas  Co.  v.  Gas  Co.,  145  Pa.  13— §228,  n.  (24)  (m4). 
Southwest  Pa.  Pipe  Co.  v.  Sand  Co.,  43  Pa.  Super.  534— §183,  n.  (4) 

(a). 

Southern  Md.  Ry.  v.  Moyer,  125  Pa.  506— §228,  n.  (18)   (t). 
Spangler  v.  Hummer,  3  P.  &  W.  370— §228,  n.  (23)  (e). 
Spangler  v.  Spangler,  122  Pa.  358— §228,  n.  (22)   (h). 
Spear  v.  R.  R.,  119  Pa.  61— §228,  n.  (23)   (h). 
Spear  v.  Jamieson,  2  S.  &  R.  530— §228,  n.  (18)  (g). 
Speer  v.  Huidekoper,  221  Pa.  448— §228,  n.  (18)   (n),  (s). 
Speers  v.  Knarr,  4  Pa.  Super.  80— §§161,  n.  (3)  (o) ;  228,  n.  (23)   (1). 
Specs  v.  Boggs,  204  Pa.  504— §228,  n.  (8)  (g). 
Spence  v.  Spence,  4  Watts  165— §228,  n.  (24)   (k2). 
Spencer  v.  Colt,  89  Pa.  314— §228,  n.  (20)  (a). 
Spencer  v.  Conrad,  44  Pa.  Super.  489— §§183,  n.  (4)  (k) ;  228,  n.  (19) 

(a). 
Spencer  v.  Kunkle,  2  Gr.  406— §228,  n.  (15)   (a). 

6/5 


Spe-Ste  TABLE  OF  CASES. 


Sperry  v.  Seidel,  218  Pa.  16— §228,  n.  (20)  (m). 

Spicer  v.  Rees,  5  Rawle  119— §§48,  n.  (2)  (c) ;  182,  n.  (4)  (b). 

Splane's  Case,  123  Pa,  527— §29,  n.  (3). 

Spotts  v.  Spotts,  4  Pa.  Super.  448— §228,  n.  (26)    (b). 

Spratt  v.  Raymond,  149  Pa.  258— §43,  n.  (9)  (p). 

Spring  Twp.  Overseers  v.  Walker  Twp.,  1  Pa.  Super.  383— §§85,  n. 

(2)  (f),  (g);228,n.  (18)  (g),  (p). 
Spring  City  Brick  Co.  v.  Mfg.  Co.,  221  Pa.  385— §§110,  n.  (1) ;  117,  n. 

(2)   (c). 

Spring  City  Brick  Co.  v.  Mfg.  Co.,  39  Pa,  Super.  7— §228,  n.  (19)   (a). 
Springdale  Twp.,  20  Pa.  Super.  381— §§108,  n.  (2)   (a),  (b) ;  182,  n. 

(4)  (c2). 

Springer  v.  Springer,  43  Pa.  518— §182,  n.  (3)   (a). 
Springer  v.  Stiver,  16  Pa.  Super.  184— §§183,  n.  (4)   (a) ;  186,  n.  (1) 

(c);  187,  n.  (2)  (a);  190,  n.  (12)  (m) ;  228,  n.  (21)   (a),  (f). 
Springfield  Ins.  Co.  v.  Brown,  128  Pa.  392— §228,  n.  (23)   (h). 
Sproat  v.  Poor  Directors,  145  Pa.  598— §228,  n.  (22)   (e). 
Sprout  v.  Eagal,  193  Pa.  389— §228,  n.  (18)  (b). 
Stafford  v.  Stafford,  27  Pa.  144— §161,  n.  (5)  (p). 
Staib's  Est.,  188  Pa.  238— §117,  n.  (4)  (b). 
Star  v.  Bradford,  2  P.  &  W.  384— §244,  n.  (1)   (a). 
Starr's  Est.,  3  Pa.  Super.  212— §45,  n.  (3)  (g). 
State  M.  F.  Ins.  Co.  v.  Keefer,  9  Pa.  Super.  186— §98,  n.  (1)  (a). 
State  Ins.  Co.  v.  Todd,  83  Pa.  272— §228,  n.  (30)   (b). 
State  Reporter's  Case,  150  Pa.  550— §9,  n.  (2) ;  n.  (3),  (7). 
Staub  v.  Wolf,  4  Penny.  280— §228,  n.  (24)  (J2) ;  n.  (29)  (e). 
Stauffer  v.  Reading,  208  Pa.  436— §228,  n.  (9)  (b). 
Staup  v.  Com.,  74  Pa.  458— §§46,  n.  (10) ;  230,  n.  (1)   (a). 
Stearly's  Ap.,  3  Gr.  270— §146,  n.  (2)   (g). 
Steckel  v.  Steckel,  28  Pa.  233— §228,  n.  (13)  (a). 
Steel  v.  Bridenbach,  7  S.  &  R.  150— §43,  n.  (6)   (s),  (g2). 
Steel  Iron  Co.  v.  Jacobs,  9  Pa.  Super.  122— §74,  n.  (1)   (s). 
Steele's  Ap.,  72  Pa.  101— §182,  n.  (3)  (a). 
Steel  v.  Hall,  38  L.  I.  240— §190,  n.  (13)  (b). 

Steinbrunner  v.  R.  R.,  146  Pa.  504— §228,  n.  (20)  (d),  (f) ;  n.  (21)  (h). 
Steiner  v.  Coxe,  4  Pa,  13— §222,  n.  (1)   (d). 

Steiner  v.  Loan  Co.,  98  Pa.  591— §§222,  n.  (1)  (j) ;  228,  n.  (17)  (g). 
Steinman's  Case,  95  Pa.  220— §53,  n.  (2) ;  n.  (3). 
Steinmeyer  v.  Seibert,  47  P.  L.  J.  117— §228,  n.  (5)   (d). 
Steinmeyer  v.  Siebert,  190  Pa.  471— §228,  n.  (18)   (h),  (i). 
Stephan  v.  Hudock,  4  Pa.  Super.  474— §74,  n.  (1)  (s). 
Stephens  v.  Addis,  19  Pa.  Super.  185— §74,  n.  (1)   (o). 
Stephens  v.  Gunzenhauser,  27  Pa.  Super.  417— §228,  n.  (24  (p2). 
Sterling  Bronze  Co.  v.  Imp.  Assn.,  226  Pa.  475— §78,  n.  (4). 
Stern  v.  Johnston,  38  Pa.  Super.  1— §228,  n.  (24)  (p2). 
Stern  v.  Stanton,  184  Pa.  468— §228,  n.  (21)   (a). 
Sternberg  v.  Sklaroff,  32  Pa.  Super.  116— §§147,  n.  (4)    (c) ;  228,  n. 

(24)  (P2). 

Sterrit  v.  Bull,  1  Bin.  238— §228,  n.  (8)   (a). 
Stephens  v.  Addis,  19  Pa.  Super,  185— §228,  n.  (1)  (a). 

676 


TABLE  OF  CASES.  Ste-Stu 


Stevenson's  Est.,  186  Pa.  262— §§188,  n.  (1)   (b) ;  228,  n.  (13)   (s). 

Stevenson  v.  Coal  Co.,  201  Pa.  112— §228,  n.  (4)  (e)  j  n.  (9)  (a),  (b). 

Stevick  v.  Com.,  1  W.  N.  C.  512— §194,  n.  (1)   (c). 

Stevenson  v.  Whitesell,  10  Pa.  Super.  306— §239,  n.  (2)  (n). 

Stewart  v.  Bank,  11  S.  &  R.  267— §161,  n.  (7)  (a). 

Stewart's  Ap.,  86  Pa.  149— §229,  n.  (1)   (d). 

Stewart  v.  Alcorn,  2  W.  N.  C.  401— §228,  n.  (19)   (a). 

Stewart  v.  Company,  207  Pa.  220— §228,  n.  (19)   (a). 

Stewart  v.  Gas  Coal  Co.,  207  Pa.  220— §228,  n.  (20)  (r). 

Stewart  v.  Machine  Co.,  200  Pa.  611— §228,  n.  (25)  (e). 

Stewart  v.  Martin,  2  Watts,  200  —§228,  n.  (3)   (a). 

Stineman's  Ap.,  23  Pa.  394— §43,  n.  (6)   (y). 

St.  James  B.  &  L.  Asso.  v.  Kelly,  29  Pa.  Super.  470— §228,  n.  (24) 

(z3). 

St.  Joseph's  Society,  35  Pa.  Super.  80— §228,  n.  (24)  (x2). 
Stockdale  v.  Maginn,  207  Pa.  227— §§190,  n.   (12)    (k) ;  228,  n.  (24) 

(h3). 

Stockdale  v.  Maginn,  131  Pa.  507— §199,  n.  (1)   (a). 
Stockett  v.  Ryan,  176  Pa.  71— §228,  n.  (18)  (g). 
Stoddart  v.  Price,  143  Pa.  537— §228,  n.  (23)  (h),  (1). 
Stoever's  Ap.,  3  W.  &  S.  154— §229,  n.  (2)  (i). 
Stoever  v.  Immel,  1  Watts  259— §228,  n.  (24)  (g3) 
Stoever  v.  Walmer,  140  Pa.  590— §228,  n.  (23)  (c). 
Stokley  v.  Trout,  3  Watts,  163— §190,  n.  (11) ;  n.  (12)   (a) ;  n.  (13) 

(b). 

Stokes  v.  Burrell,  3  Gr.  241— §228,  n.   (24)    (p2). 
Stokes  v.  Compton,  38  Pa.  Super.  474— §228,  n.  (18)   (g). 
Stokes  v.  Miller,  10  W.  N.  C.  241— §228,  n.  (21)   (h),  (i). 
Stone's  Ap.,  23  W.  N.  C.  283— §§228,  n.  (18)  (q) ;  229,  n.  (2)   (b). 
Stoner  v.  House,  28  Pa.  Super.  485— §228,  n.  (18)  (b). 
Storch  v.  Carr,  28  Pa.  135— §228,  n.  (17)  (b),  (d) ;  n.  (19)  (a). 
Stouffer  v.  Latshaw,  2  Watts  165— §228,  n.  (23)  (e). 
Stough's  Est.,  10  Dist.  547— §243,  n.  (3)   (c). 
Stout  v.  Quinn,  9  Pa.  Super.  179— §§43,  n.  (7)  (q) ;  147,  n.  (4)  (c). 
Stowe  Twp.  Road,  20  Pa.  Super.  404— §§182,  n.  (4)   (k) ;  231,  n.  (1) 

(a). 

Straub  v.  Smith,  2  S.  &  R.  382— §43,  n.  (3)  (£2). 
Strause  v.  Berger,  220  Pa.  367— §228,  n.  (18)  (g). 
Strawbridge  v.  Cartledge,  7  W.  &  S.  220— §228,  n.  (20)   (x) ;  n.  (22) 

(P). 

Stremme  v.  Dyer,  223  Pa.  7— §228,  n.  (20)  (a). 
Stroh  v.  Hess,  1  W.  &  S.  147— §228,  n.  (20)  (d). 
Stroop  v.  Swarts,  12  S.  &  R.  76— §43,  n.  (5)  (1) ;  n.  (6)  (a2) ;  n.  (10) 

(a). 

Stroud  v.  Smith,  194  Pa.  502— §228,  n.  (20)   (n),  (t). 
Stroup  v.  McClure,  4  Yeates  523— §228,  n.  (30)  (f). 
Stroup  v.  Raymond,  183  Pa.  279— §228,  n.  (24)   (m4). 
Strouse  &  Co.  v.  Bard,  8  Pa.  Super.  48— §228,  n.  (24)  (b). 
Stuart  v.  Line,  11  Pa.  Super.  345— §228,  n.  (19)  (i) ;  n.  (20)  (b),  (e), 

(q);n.  (22)  (k). 

677 


Stu-Syk  TABLE  OF  CASES. 


Stuckslayer  v.  Need,  123  Pa.  53— §228,  n.  (19)  (a). 
Studebaker  v.  Gas  Co.,  7  Pa.  Super.  641— §228,  n.  (20)   (a). 
Stultzfoos's  Ap.,  3  P.  &  W.  265— §44,  n.  (5)  (a) ;  n.  (6)  (z). 
Sturgeon  v.  Stevens,  186  Pa.  350— §228,  n.  (IS)  (g). 
Sturm  v.  Sawyer,  2  Pa.  Super.  254— §191,  n.  (1)   (b). 
Sturts  v.  Zeigler,  44  Pa.  Super.  124— §228,  n.  (9)   (h). 
Sturzebecker  v.  Traction  Co.,  211  Pa.  156— §228,  n.  (24)   (n). 
Sugar  Creek  Overseers,  v.  Overseers,  62  Pa.  479 — §85,  n.  (1)  (c). 
Sugar  Creek  v.  Washington,  62  Pa.  479— §146,  n.  (2)   (h). 
Sullivan  v.  Weaver,  9  Pa.  223— §§48,  n.  (1)  (b) ;  51,  n.  (1)  (a). 
Summerson  v.  Hicks,  142  Pa.  344— §228,  n.  (11)   (e). 
Summerville  v.  Painter,  44  Pa.  110— §228,  n.  (15)   (f). 
Supplee  v.  Timothy,  124  Pa.  375— §228,  n.  (21)  (a). 
Susong's  Ap.,  2  Pa.  Super.  611— §190,  n.  (12)   (a),  (k). 
Susquehanna  Ins.  Co.  v.  Gackenbach,  115  Pa.  492— §228,  n.  (2)    (h) ; 

n.  (29)  (b). 
Susquehanna  Ins.  Co.  v.  Clinger,  10  Pa,  Super.  92— §228,  n.  (20)   (a) ; 

n.  (24)   (m2). 
Susquehanna  Twp.  Overseers  v.  Overseers,  4  Pa.  Super.  589 — §85,  n. 

(1)   (f). 

Sutton  v.  R.  R.,  214  Pa.  274— §187,  n.  (1)   (g). 
Swank  v.  Phillips,  113  Pa.  482— §228,  n.  (22)  (e). 
Swanson  v.  Crandall,  2  Pa.  Super.  85— §228,  n.  (23)   (c). 
Swartz's  Ap.,  119  Pa.  208— §74,  n.  (1)  (f). 
Swartz  v.  Moore,  5  S.  &  R.  257— §228,  n.  (2)  (h). 
Swartz  v.  Hauser,  10  W.  N.  C.  434— §228,  n.  (23)   (g). 
Swayne  v.  Swayne,  19  Pa.  Super.  160— §185,  n.  (4)  (a),  (b). 
Swearingen  v.  Pendleton,  4  S.    R.  389— §228,  n.  (4)  (q). 
Sweeny  v.  Oil  Co.,  130  Pa.  193— §183,  n.  (2)  (c). 
Sweetzer  v.  Atterbury,  100  Pa.  18— §190,  n.  (13)   (h). 
Sweigard  v.  Wilson,  106  Pa.  207— §228,  n.  (18)   (t2). 
Sweitzer  v.  Hummel,  3  S.  &  R.  228— §228,  n.  (22)  (1),  (p). 
Swing  v.  Walker,  27  Pa.  Super.  366— §228,  n.  (20  (m) ;  n.  (21)  (a). 
Swisher  v.  Sipps,  19  Pa.  Super.  43— §196,  n.  (2)  (c) ;  n.  (3)  (a). 
Swissvale  Boro.,  9  Pa.  Super.  212— §§48,  n.  (1)    (f ) ;  56,  n.   (4)    (a), 

(b). 

Switland  v.  Holgate,  8  Watts  385— §228,  n.  (23)   (e). 
Swoope  v.  Wakefield,  10  Pa.  Super.  342— §§140,  n.   (3)    (d) ;  213,  n. 

(1) ;  228,  n.  (15)  (a). 
Swope  v.  Donnelly,  190  Pa.  417— §§187,  n.  (1)   (b),  (e) ;  198,  n.  (1) 

(e). 

Swope  v.  Snyder,  209  Pa.  352— §§150,  n.  (2)  (a) ;  184,  n.  (2). 
Swoyerville  Boro.,  12  Pa.  Super.  118— §§48,  n.  (1)  (f) ;  56,  n.  (4)  (a), 

(b). 
Swoyerville  Boro.  Incorporation,  12  Pa.  Super.  118 — §182,  n.  (1)  (b) ; 

n.  (4)   (w). 

Sydney  v.  Linton,  216  Pa.  240— §228,  n.  (24)   (m2). 
Sykes  v.  Thornton,  152  Pa.  94— §§44,  n.  (6)    (m) ;  228,  n.  (24)   (o3), 

(14). 

678 


TABLE  OF  CASES.  Tag-Tho 


Taggart  v.  McGinn,  14  Pa.  155— §228,  n.  (18)  (o2). 

Talcott  v.  Oppenheimer,  159  Pa.  506— §190,  n.  (14)   (a). 

Tanney  v.  Tanney,  159  Pa.  277,  286— §200,  n.  (1)   (a). 

Tara  Benevolent  Society  v.  8  Phila.,  237 — §35,  n.  (2)   (a). 

Tarentum  Boro.  v.  Morhead,  26  Pa.  Super.  273— §78,  n.  (3)   (a). 

Taxpayers'  Petition,  32  C.  C.  499,  15  Dist.  689— §38,  n.  (1)    (g). 

Taylor's  Est.,  179  Pa.  254— §43,  n.  (10)  (c),  (d). 

Taylor's  Est.,  35  Pa.  Super.  452— §228,  n.  (18)   (q). 

Taylor's  Ap.,  21  W.  N.  C.  356— §239,  n.  (1)  (g) ;  n.  (4)   (a). 

Taylor  v.  Burrel,  7  Pa.  Super.  261— §228,  n.  (15)    (b) ;  n.  (20)    (a), 

(r);  n.  (21)    (a). 

Taylor  v.  Com.,  44  Pa.  131— §§46,  n.  (5)  (d) ;  228,  n.  (31)  (a). 
Taylor  v.  Folz,  24  Pa.  Super.  1— §228,  n.  (18)  (n),(s),  (m2). 
Taylor  v.  Fuller,  5  Pa.  Super.  193— §228,  n.  (20)   (d),  (a2) ;  n.  (21) 

(h). 

Taylor  v.  Paul,  6  Pa.  Super.  496— §228,  n.  (20)  (h). 
Taylor  v.  Sattler,  6  Pa.  Super.  431— §§185,  n.  (1)    (b) ;  228,  n.  (14) 

(a);n.  (19)    (a),  (d). 

Taylor  Lumber  Co.  v.  Carnegie  Institute,  225  Pa.  486— §78,  n.  (4). 
Tenan  v.  Cain,  188  Pa.  242— §228,  n.  (25)  (a). 
Tenbrooke  v.  Jahke,  77  Pa.  392— §228,  n.  (22)   (h) ;  n.  (23)  (h). 
Terry  v.  Wenderoth,  147  Pa.  519— §228,  n.  (4)  (b),  (h). 
Thatcher's  Case,  18  Pa.  Super.  533— §§182,  n.  (4)  (t) ;  230,  n.  (1)  (f). 
Thirteenth  Ward  B.  &  L.  Asso.  v.  Coyle,  19  Pa.  Super.  238— §242,  n. 

(2)  (e);n.  (3)  (b). 
Thirty-fourth  Street,  81  Pa.  27— §§182,  n.  (4)   (k) ;  183,  n.  (4)   (a) ; 

228,  n.  (1)  (a). 
Thomas  v.  Borden,  222  Pa.  184— §§44,  n.  (6)    (c) ;  150,  n.  (2)    (a) ; 

155,  n.  (1)  (a);  183,  n.  (4)  (a). 

Thomas  v.  Bradfield,  15  B.  I.  165— §146,  n.  (2)   (h). 
Thomas  v.  Butler,  24  Pa.  Super.  305— §228,  n.  (20)   (n),  (q),  (i2) ;  n. 

(22)   (e),  (12). 

Thomas  v.  Johnson,  175  Pa.  458— §161,  n.  (1)  (i). 
Thomas  v.  Law,  25  Pa.  Super.  19— §228,  n.  (23)   (h). 
Thomas  v.  Loose,  114  Pa.  35— §228,  n.  (19)   (a). 
Thomas  v.  Mann,  28  Pa.  520— §228,  n.  (2)  (h)  n.  (26)   (a). 
Thomas  v.  Northern  Liberties,  13  Pa.  117— §228,  n.  (4)  (f). 
Thomas  v.  Shoemaker,  6  W.  &  S.  179;  §126,  n.  (3)  (j). 
Thomas  v.  Snyder,  23  Pa.  515— §190,  n.  (12)   (a). 
Thomas  v.  Thomas,  21  Pa.  315— §228,  n.  (19)   (a). 
Thomas  v.  Twp.,  148  Pa.  116— §48,  n.  (1)   (c). 
Thomas  v.  Upper  Merion  Twp.,  148  Pa.  116— §182,  n.  (3)  (c). 
Thompson  v.  Prettyman,  231  Pa.  1— §190,  n.  (12)    (k) ;  228,  n.  (18) 

(u). 

Thompson's  Ap.,  103  Pa,  603— §228,  n.  (24)   (q3). 
Thompson  v.  Barkley,  27  Pa.  263— §228,  n.  (24)   (p2). 
Thompson  v.  Cross,  16  S.  &  R.  350— §228,  n.  (13)  (b) ;  n.  (27)  (h). 
Thompson  v.  Franks,  37  Pa.  327— §228,  n.  (21)  (a). 
Thompson  v.  Kaufman,  9  Pa.  Super.  305— §190,  n.  (13)   (k) ;  n.  (14) 

(b). 

679 


Tho-Try  TABLE  OF  CASES. 


Thompson  v.  McConnell,  1  Gr.  396— §183,  n.  (2)   (q). 

Thompson  v.  Petriello,  33  Pa.  Super.  651— §§155,  n.  (1)   (a);  189,  n. 

(1)   (b). 
Thompson  v.  Preston,  5  Pa.  Super.  154— §§108,  n.  (2)   (a) ;  110,  n.  (2) 

(b);182,  n.  (1)   (a) ;  n.  (4)   (p2). 
Thompson  v.  Stevens,  71  Pa.  161— §228,  n.  (24)   (n2). 
Thome  v.  Wharfflein,  100  Pa.  519— §190,  n.  (14)   (b). 
Thornton  v.  Ins.  Co.,  71  Pa.  234— §48,  n.  (1)   (q2). 
Thornton  v.  Britton,  144  Pa.  126— §228,  n.  (4)  (k) ;  n.  (24)  (£2). 
Thrall  v.  Williamsport,  4  Pa.  Super.  165— §11,  n.  (4)   (c). 
ThraU  v.  Wilson,  17  Pa.  Super.  376— §228,  n.  (4)    (n) ;  n.  (19)    (h) ; 

n.  (20)  (a),  (b),  (w);n.  (21)  (c). 
Tiernan's  Est.,  33  Leg.  Int.  24— §43.  n.  (6)   (u). 
Tietz  v.  Traction  Co.,  169  Pa.  516— §28,  n.  (19)  (i) ;  n.  (21)  (h). 
Tilbury  v.  R.  R.,  221  Pa.  245— §88,  n.  (3)  (a). 

Titusville  B.  &  L.  Asso.  v.  McCombs,  92  Pa.  364— §50,  n.  (2)    (a). 
Todd  v.  Patterson,  17  S.  &  R.  345— §48,  n.  (1)   (c2). 
Todd  v.  Ins.  Co.,  9  Pa.  Super.  371— §228,  n.  (24)  (c). 
Toddes  v.  Hafer,  25  Pa.  Super.  78— §§148,  n.  (1)  (e) ;  155,  n.  (2)  (a) ; 

187,  n.  (1)   (b). 

Toole  v.  Railroad  Co.,  158  Pa.  99— §228,  n.  (20)   (h). 
Toole's  Ap.,  90  Pa.  376— §§48,  n.  (1)  (e2) ;  228,  n.  (24)  (s3). 
Torrance  v.  Torrance,  53  Pa.  505— §228,  n.  (19)  (a). 
Torrey  v.  Scranton,  133  Pa.  173— §228,  n.  (U)  (a). 
Titusville  Iron  Works  v.  Oil  Co.,  130  Pa.  211— §228,  n.  (6)    (m) ;  n. 

(7)  (a). 
Titusville  Oil  Exchange,  10  Pa.  Super.  496— §§44,  n.  (6)   (j) ;  163,  n. 

(4)  (d);169,n.  (1)  (b). 

Tobin  v.  Gregg,  34  Pa.  446— §228,  n.  (20)   (h) ;  n.  (23)  (e). 
Tobin  v.  Tobin,  32  Pa.  Super.  186— §43,  n.  (3)   (c). 
Totten's  Ap.,  40  Pa.  385— §228,  n.  (24)   (p3). 
Towanda  Bridge  Co.,  91  Pa.  216— §48,  n.  (5)   (a). 
Township  Road,  135  Pa.  176— §198,  n.  (3)  (b). 
Tozer  v.  Jackson,  164  Pa.  373— §228,  n.  (8)  (d). 
Travellers'  Ins.  Co.  v.  Heath.  95  Pa.  333— §243,  n.  (1)  (i) ;  n.  (2)  (a) ; 

n.  (5)   (a). 

Treat  v.  Ins.  Co.,  199  Pa.  326— §71,  n.  (1)  (b). 
Trego  v.  Lewis,  58  Pa.  463— §232.  n.  (1)   (n). 
Trego  v.  Pierce,  119  Pa.  139— §228,  n.  (25)   (a). 
Trenton  Rubber  Co.  v.  Small,  3  Pa.  Super.  8— §228,  n.  (24)   (b). 
Trescot  v.  Bank,  212  Pa.  47— §§190,  n.  (3)  (f ) ;  228,  n.  (24)  (b). 
Tressler's  Est..  228  Pa.  281— §45,  n.  (3)   (g),  (r). 
Trexler  v.  Africa,  33  Pa.  Super.  395— §228,  n.  (23)  (k). 
Trimble's  License,  41  Pa.  Super.  370— §190,  n.  (14)    (e). 
Troubat  Avenue,  10  Pa.  Super.  27— §§183,  n.  (4)   (a) ;  228,  n.   (14) 

(a);n.  (15)  (a). 

Troxell  v.  Mining  Co.,  213  Pa.  475— §228,  n.  (11)  (d). 
Trullinger  v.  Charles,  129  Pa.  289— §185.  n.  (2)  (h). 
Tryon  v.  Carlin,  5  Watts  371— §228,  n.  (4)  (t). 
Tryon  v.  Cadwalladar.  3  Luz.  L.  Ob.  230— §66,  n.  (4)   (c). 

680 


TABLE  OF  CASES.  Try-Ven 


Tryon  v.  Mather,  1  Whar.  11— §228,  n.  (20)   (12) 

Turner  v.  Larkin,  12  Pa.  Super.  284— §146,  n.  (2)   (h). 

Turner  v.  Whitaker,  9  Pa.  Super.  83— §228,  n.  (14)  (a). 

Turner's  Est.,  183  Pa.  543— §45,  n.  (3)   (i),  (o). 

Turnpike  Koad  v.  Berks  Co.,  196  Pa.  21— §187,  n.  (4)   (f). 

Turton  v.  Electric  Co.,  185  Pa.  406— §228,  n.  (20)   (a). 

Twelfth  St.  Market  Co.  v.  R.  R.  142  Pa.  580— §§90,  n.   (1) ;  228,  n. 

(24)   (g3). 

Twibill's  Est.,  29  Pa.  Super.  319— §242,  n.  (1)   (h). 
Twitchel's  Ap.,  4  W.  N.  C.  68— §186,  n.  (1)   (b). 
Tyrone,  etc.  Co.  v.  Cross,  128  Pa.  636— §288,  n.  (22)   (e). 

Udderzook  v.  Harris,  140  Pa.  236— §185,  n.  (1)   (d). 
Ullery  v.  Clark,  18  Pa.  148— §§288,  n.  (28)  (i) ;  232,  n.  (2)  (a). 
Ulshafer  v.  Stewart,  71  Pa.  170— §§43,  n.  (10)  (g) ;  235,  n.  (1)  (a). 
Ulysses  v.  Elgin  Butter  Co.,  20  Pa.  Super.  384— §183,  n.  (4)   (b). 
Ulysses  Co.  v.  Ins.  Co.,  20  Pa.  Super.  384— §228,  n.  (15)  (a)  ;"n.  (24) 

(a2). 

Umberger  v.  Zearing,  8  S.  &  R.  163— §228,  n.  (24)  (b). 
Unangst  v.  Kreamer,  8  W.  &  S.  391— §228,  n.  (25)  (a). 
Union  Tract.  Co.  v.  Grubb,  24  Pa.  Super.  345— §228,  n.  (18)  (q). 
Union  Trust  Co.  v.  Cain,  29  Pa.  Super.  197— §190,  n.  (12)   (a). 
Union  Trust  Co.  v.  Cain  (No.  2),  29  Pa.  Super.  197— §190,  n.  (12)  (a). 
United  E.  L.  Co.  v.  E.  Pittsburg,  230  Pa.  65— §184,  n.  (2). 
United  States  Engine  Co.  v.  Iron  Co.,  227  Pa.  262— §228,  n.  (3)  (j). 
U.  S.  Tel.  Co.  v.  Wenger,  55  Pa.  262— §§82,  n.  (1)   (a) ;  228,  n.  (24) 

(12);  161,  n.  (4)   (g). 

Updegraff  v.  Snyder,  36  Pa.  Super.  30— §190,  n.  (14)   (a). 
Uplinger  v.  Bryan,  12  Pa.  219— §228,  n.  (25)    (a). 
Upper  Dublin  Road,  94  Pa.  126— §146,  n.  (2)   (a). 
Urket  v.  Loryell,  5  W.  &  S.  60— §228,  n.  (22)  (f2). 
Utt  v.  Long,  6  W.  &  S.  174— §228,  n.  (22)  (k). 

Valentine's  Ap.,  3  W.  N.  C.  471— §45,  n.  (2)  (a) ;  n.  (3)  (r). 
Valley  Twp.  Div.,  146  Pa.  Ill— §182,  n.  (4)   (b2). 
Vandermis  v.  Gilbert,  10  Pa.  Super.  159— §182,  n.  (1)   (b). 
Vandermis  v.  Gilbert,  10  Pa.  Super.  570— §182,  n.  (4)  (12). 
Vanderslice  v.  Donner,  26  Pa.  Super.  319— §§183,  n.  (2)   (a) ;  187,  n. 

(1)   (f)- 

Vandevort  v.  Wheeling  Iron  Co.,  194  Pa.  118— §228,  n.  (23)  (h). 
Van  Dike  v.  Townsend,  35  L.  I.  171— §228,  n.  (24)   (d2). 
Van  Home  v.  Dick,  151  Pa.  341— §§187,  n.  (1)  (b) ;  228,  n.  (25)  (c). 
Van  Horn  v.  Frick,  3  S.  &  R.  278— §43,  n.  (5)   (m). 
Vankirk  v.  McKee,  9  Pa.  100— §228,  n.  (18)   (o2). 
Vanpool  v.  Com.  13  Pa.  391— §230,  n.  (1)   (c). 
Vansant  v.  Boileau,  1  Bin.  444— §182,  n.  (2)   (w). 
Van  Sciver  v.  McPherson,  199  Pa.  331— §196,  n.  (3)   (a),  (c). 
Van  Sciver  v.  Churchill,  35  Pa.  Super.  212— §228,  n.  (24)   (m). 
Vaux's  Ap.,  109  Pa.  497— §§182,  n.  (4)   (s2) ;  228,  n.  (24)  (w2). 
Vensel  v.  Coiner,  31  L.  L  373— §228,  n.  (1)  (b) ;  n.  (17)   (a),  (c). 

681 


Ver-Wal  TABLE  OF  CASES. 


Verona  Boro.'s  Ap.,  5  Pa.  Super.  340— §56,  n.  (6)   (a). 
Vincent  v.  Huff,  4  S.  &  R.  298— §228,  n.  (22)  (h) ;  n.  (24)  (£2). 
Vivian  v.  Challenger,  45  Pa.  Super.  1— §§185,  n.  (4)  (a) ;  228,  n.  (29) 

(k). 

Volk  v.  Bently,  40  Pa.  Super.  628— §190,  n.  (12)  (r). 
Voskamp  v.  Conner,  173  Pa.  109— §185,  n.  (1)   (b),  (f ) ;  n.  (2)   (a). 
Vulcanite  Paving  Co.  v.  Transit  Co.,  220  Pa.  603— §78,  n.  (4). 
Vulcanite  Paving  Co.  v.  Ruch,  147  Pa.  251— §228,  n.  (25)   (a). 
Vulcanite  Portland  Cement  Co.  v.  Allison,  220  Pa.  382— §78,  n.  (4). 

Wabash  Avenue,  26  Pa.  Super.  305— §§183,  n.  (2)    (a);  185,  n.   (1) 

(h);186,  n.  (1)   (b) ;  n.  (2). 

Wacker's  License,  6  Pa.  Super.  323— §43,  n.  (5)   (v). 
Wacker  v.  Straub,  88  Pa.  32— §190,  n.  (12)  (a). 
Wagner's  Ap.,  43  Pa.  102— §228,  n.  (1)   (a). 
Wagner's  Ap.,  65  Pa.  102— §228,  n.  (17)   (a). 
Wagner  v.  Twp.,  132  Pa.  636— §48,  n.  (5)    (c). 
Wagenhorst's  Ap.,  126  Pa.  127— §190,  n.  (12)   (a),  (1). 
Wagon  Works'  Est.,  198  Pa.  250— §228,  n.  (6)   (c). 
Wahl  v.  Railroad  Co.,  158  Pa.  257— §228,  n.  (22)  (k). 
Walbert  v.  Trexler,  156  Pa.  112— §228,  n.  (22)  .(a2). 
Waldron  v.  Waldron,  55  Pa.  231— §228,  n.  (24)  (y2). 
Walker's  Ap.,  2  Ball.  190— §228,  n.  (1)  (b). 

Walker's  Est.,  25  Pa.  Super.  256— §§45,  n.  (3)  (e) ;  117,  n.  (2)  (b). 
Walker's  Est.,  3  Rawle  243— §229,  n.  (1)  (c). 
Walker  v.  Edmonds,  197  Pa.  644— §228,  n.  (18)  (q). 
Walker  v.  Tupper,  152  Pa.  1— §228,  n.  (1)   (j) ;  n.  (2)  (i) ;  n.  (4)  (p). 
Walker  Twp.  Overseers  v.  Knisely,  17  Pa.  Super.  415— §§108,  n.  (2) 

(a);182,n.  (4)  (r). 

Wall  v.  Building  Asso.,  3  Leg.  Gaz.— §228,  n.  (11)   (h). 
Wallace's  Est.,  40  Pa.  Super.  595— §43,  n.  (6)   (y). 
Wallace  v.  Henderson,  211  Pa.  142— §228,  n.  (22)   (n). 
Wallace  v.  Jameson,  179  Pa.  94— §43,  n.  (3)   (f). 
Wallace  v.  Jameson,  179  Pa.  98— §§82,  n.  (1)  (a) ;  228,  n.  (24)   (12) . 
Wallace  v.  Holmes,  40  Pa.  427— §235,  n.  (1)  (a). 
Wallington  v.  Kneass,  15  Pa.  315— §§48,  n.  (1)   (x) ;  182,  n.  (4)   (t2) 
Walls  v.  Campbell,  23  W.  N.  C.  506— §146,  n.  (2)  (g) 
Walls  v.  Wilson,  28  Pa.  514— §228,  n.  (1)  (a) ;  n.  (17)  (a) 
Wain  v.  Beaver,  161  Pa.  605— §141,  n.  (1)  (b),  (d). 
Walsh  v.  Ashford,  9  Pa.  Super.  566— §§74,  n.  (1)    (s) ;  228,  n.   (24) 

(z3). 

Walsh  v.  Bourse,  15  Pa.  Super.  219— §50,  n.  (4)   (a). 
Walsh  v.  Porterfield,  87  Pa.  376— §228,  n.  (20)   (a). 
Walter's  Est.,  2  Chester  Co.,  159— §239,  n.  (2)   (j). 
Walter  v.  Sun  Fire  Office,  165  Pa.  381— §§154,  n.   (1)  •  190   n    (14) 

(b);228,  n.  (1)  (b) ;  n.  (17)   (a). 
Walter  v.  Fees,  155  Pa.  55— §74,  n.  (1)  (s). 
Walter  v.  Transue,  22  Pa.  Super.  617— §228,  n.  (13)  (f) 
Walthour  v.  Spangler,  31  Pa.  523— §228,  n.  (24)  (a) ;  n.  (26)  (a) 
Walton  v.  Caldwell,  5  Pa.  Super.  143— §228,  n.  (19)    (a). 

682 


TABLE  OF  CASES.  Wal-Wel 


Walton  v.  Hinnan,  146  Pa.  396— §§186,  n.  (1)   (a) ;  187,  n.  (4)  (f). 

Wannamaker  v.  Burke,  111  Pa.  423— §228,  n.  (23)  (c). 

Warfel  v.  Knott,  128  Pa.  528— §187,  n.  (1)  (b). 

Warner  v.  Hare,  154  Pa.  548— §228,  n.  (18)   (z). 

Warner  v.  McMullin,  131  Pa.  370— §183,  n.  (3)   (g) ;  page  537,  Ap. 

Warner  v.  R.  R.,  39  Pa.  Super.  282— §§155,  n.  (1)    (a),  (1);  161,  n. 

(9)    (b),   (d). 
Warren  v.  Johnston,  33  Pa.  Super.  617— §§43,  n.  (3)   (v) ;  77,  n.  (2) 

(e). 

Warren  v.  Steer,  17  W.  N.  C.  12— §164,  n.  (2). 

Warsaw  Twp.  Poor  Dist.  v.  Poor  Dist.,  107  Pa.  301— §85,  n.  (1)   (a). 
Warsaw  Twp.  Poor  Dist.  v.  Knox  Twp.  Poor  Dist.,  117  Pa.  301— §182, 

n.  (2)  (b). 
Warwick  Steel  &  Iron  Co.  v.  McKeag,  205  Pa.  490— §§113,  n.  (5)  (b) ; 

190,  n.  (3)   (a);  n.  (5);  n.  (15)   (a);  191,  n.  (1)   (a). 
Washington  St.,  30  Pa.  Super.  542— §43,  n.  (3)  (z). 
Wachter's  Case,  1  Walk.  267— §43,  n.  (6)  (w). 
Watkins  v.  Hughes,  206  Pa.  526— §§42,  n.  (1)    (d) ;  43,  n.  (1)    (c) ; 

44,  n.  (3)  (a) ;  n.  (6)  (x) ;  126,  n.  (5)  (c) ;  228,  n.  (18)  (m). 
Watson  v.  Supplee,  14  W.  N.  C.  452— §50,  n.  (2)   (a). 
Watson  v.  Willard,  9  Pa.  89— §43,  n.  (5)  (q) ;  n.  (6)  (c2). 
Watson  v.  Welter,  91  Pa.  385— §43,  n.  (9)   (c). 
Watts  v.  Cummins,  59  Pa.  84— §228,  n.  (20)   (a). 
Wattson  v.  R.  R.,  83  Pa.  254—  §1,  n.  (3). 
Wayne  Twp.  v.  Jersey  Shore,  81  Vz  Pa.  264— §§48,  n.  (1)   (m2J;  85, 

n.  (1)    (a). 

Waynesboro  Ins.  v.  Creaton,  98  Pa.  451— §228,  n.  (22)  (e). 
Waynesburg  Boro.'s  North  Ward,  29  Pa.  Super.  525— §182,  n.   (4) 

(a2). 

Weamer  v.  Juart,  29  Pa.  257— §228,  n.  (19)  (a). 
Weaver's  Est.,  25  Pa.  434— §228,  n.  (15)  (a). 
Weaver's  Case,  116  Pa.  225— §§75,  n.  (2)   (a);  182,  n.  (4)   (m2). 
Weaver's  Case,  20  Pa.  Super.  95— §§146,  n.  (2)   (c) ;  182,  n.  (4)   (j). 
Weaver  v.  Com.,  29  Pa.  445— §§185,  n.  (1)    (n) ;  228,  n.  (1)    (b) ;  n. 

(17)   (a). 

Weaver  v.  Cone,  189  Pa.  298— §117,  n.  (3)  (b). 
Webb  v.  Lees,  149  Pa,  13— §228,  n.  (21)   (h). 
Webb  v.  Hears,  45  Pa.  222— §228,  n.  (23)  (c). 
Weidknecht  v.  Boyer,  2  W.  N.  C.  638— §228,  n.  (24)   (J4). 
Weidler  v.  Bank,  11  S.  &  R.  134— §228,  n.  (23)  (d). 
Weil  v.  Frauenthal,  103  Pa.  317— §126,  n.  (1)  (a) ;  n.  (4)  (n). 
Weinberger  v.  Shelly,  6  W.  &  S.  336— §228,  n.  (27)   (j). 
Weishert  v.  Orris,  32  L.  I.  283— §228,  n.  (17)   (d). 
Weiss  v.  Swift,  36  Pa.  Super.  376— §228,  n.  (19)  (a). 
Weiss 's  Ap.,  5  W.  N.  C.  423— §43,  n.  (5)   (f). 
Weitz  v.  Banfield,  226  Pa.  241— §228,  n.  (24)  (p2). 
Welch  v.  Miller,  210  Pa.  204— §228,  n.  (14)   (a). 

Welch  v.  Vanbebber,  4  Yeates  559— §§228,  n.  (28)  (e) ;  232,  n.  (1)  (a). 
Welliver  v.  Canal  Co.,  23  Pa.  Super.  79— §§161,  n.   (3)    (q) ;  183,  n. 

(4)  (a);  187,  n.  (2)  (a);  228,  n.  (20)  (u) ;  n.  (22)  (n). 

683 


Wel-Whi  TABLE  OF  CASES. 


Wellock  v.  Cowan,  16  S.  &  R.  318— §228,  n.  (24)  (d4). 

Wells  v.  Ins.  Co.,  191  Pa.  207— §228,  n.  (23)  (e). 

Wells  v.  Wells,  6  C.  C.  417— §43,  n.  (9)  (d). 

Welsh's  Ap.,  22  Pa.  Super.  392— §§43,  n.  (7)  (q) ;  182,  n.  (4)  (u) ;  228, 

n.  (18)   (o). 

Welsh  v.  Speakman,  8  W.  &  S.  257— §228,  n.  (31)   (e). 
Wendt's  Est.,  14  Pa.  Super.  644— §228,  n.  (18)   (q). 
Wenger's  Est.,  2  Pa.  Super.  611— §228,  n.  (2)   (h) ;  n.  (28)  (h). 
Wenger  v.  Barnhart,  55  Pa.  300— §228,  n.  (20)  (b),  (h),  (y). 
Wenrich  v.  Heffner,  38  Pa.  207— §228,  n.  (23)  (g),  (h). 
Werfel  v.  Com.,  5  Bin.  65— §228,  n.  (31)   (a). 
Werkheiser  v.  Werkheiser,  6  W.  &  S.  184— §228,  n.  (22)   (c2). 
Werneberg  v.  Pittsburg,  210  Pa.  267— §228,  n.  (8)  (j). 
Wernersville  Boro.,  38  Pa.  Super.  462— §§48,  n.   (1)    (f ) ;  56,  n.   (4) 

(b);182,  n.  (4)    (w). 

Wernet's  Ap.,  91  Pa.  319— §228,  n.  (24)   (z3). 
Wertz  v.  May,  21  Pa.  274— §228,  n.  (19)   (a). 
Wertz  v.  May,  21  Pa.  274— §228,  n.  (26)   (b). 
Wesley  v.  Sharpe,  19  Pa.  Super.  600— §163,  n.  (1)   (d). 
West's  Ap.,  3  S.  &  R.  92—  §§42,  n.  (1)  (d) ;  43,  n.  (1)  (c). 
West  Branch  Ins.  Co.  v.  Macklin,  66  Pa.  34— §228,  n.  (23)   (e). 
West  Chester  v.  Postal  Tel.  &  Cable  Co.,  No.  320,  Jan.  3,  1909,  M.  S.— 

121,  n.  (3)  (c). 

West  Chester  Boro.  v.  Tel.  Co.,  38  Pa.  Super.  603— §228,  n.  (18)   (g). 
West  Donegal  Twp.  Road,  21  Pa.  Super.  620— §§182,  n.  (4)  (e),  (k) ; 

231,  n.  (1)  (a),  (k). 

Western  N.  Y.,  &c.  Ry.  v.  Ry.,  193  Pa.  127— §71,  n.  (1)   (e). 
West  Hickory  Mining  Asso.  v.  Reed,  80  Pa.  38— §185,  n.  (2)   (a). 
Westmoreland  S.  B.  &  L.  Asso.  v.  Nesbit,  21  Pa.  Super.  150— §228,  n. 

(24)   (m4). 

Westmoreland  v.  Conemaugh,  34  Pa.  231— §161,  n.  (4)  (i) . 
West  Perry  Twp.  Overseers  v.  Overseers,  2  Walk.  262— §85,  n.  (2)  (d) 
West  Pikeland  Twp.  Road,  38  Pa.  Super.  466— §231,  n.  (1)  (a). 
Wetherald  v.  Shupe,  109  Pa.  389— §§182,  n.  (4)  (a),  (h) ;  228,  n.  (24) 

(x). 
Wetherill  v.  Erwin,  12  Pa.  Super.  259— §228,  n.  (19)  (a) ;  n.  (20)   (j) ; 

n.  (23)  (m). 

Wetter  v.  Kiley,  95  Pa.  461— §43,  n.  (19)   (s). 

Whaley  v.  Bank,  28  Pa.  Super.  531— §§187,  n.  (1)  (b) ;  198,  n.  (1)  (b). 
Wharmby's  Ap.,  4  Kulp  23— §§190,  n.  (12)   (j) ;  202,  n.  (1)  (b). 
Wharton  v.  Williamson,  13  Pa.  273— §228,  n.  (8)  (j). 
Wheeler  v.  Winn,  53  Pa.  122— §§147,  n.  (4)   (a) ;  161,  n.  (1)   (a). 
Wheeler  v.  Phila.,  77  Pa,  338— §36,  n.  (2)  (a),  (b). 
Whetstone  v.  Bowser,  29  Pa.  59— §190,  n.  (13)   (a);  n.  (14)   (b). 
Whitaker  v.  Campbell,  187  Pa.  113— §228,  n.  (20)   (a),  (n). 
White's  Ap.,  15  W.  N.  C.  313— §43,  n.  (7)  (d),  (f). 
White  v.  Black,  14  Pa.  Super.  459 §228,  n.  (19)   (a) ;  n.  (20)   (a), 

(c). 

White  v.  Kyle,  1  S.  &  R.  515— §228,  n.  (22)    (n). 
White  v.  Ry.,  215  Pa.  462— §228,  n.  (24)   (s2). 

684 


TABLE  OF  CASES.  Whi-Wil 


White  v.  R.  R.  222  Pa.  534— §228,  n.  (25  (m),  (x). 

White  v.  Rech,  171  Pa.  82— §146,  n.  (2)   (h). 

Whitecar  v.  Supreme  Castle,  18  Pa.  Super.  631— §§74,  n.   (1)    (s) ; 

228,  n.  (24)   (z3). 

Whitehall  v.  Wilson,  3  P.  &  W.  405— §228,  n.  (23)  (e). 
Whitehill  v.  Schwartz,  27  Pa.  Super.  526— §228,  n.  (4)   (v). 
White-marsh  Road,  5  Pa.  101— §228,  n.  (24)   (f3). 
Whitesell  v.  Peck,  176  Pa.  170— §243,  n.  (1)  (c) ;  n.  (3)  (a). 
Whiting  Mfg.  Co.  v.  Bank,  15  Pa.  Super.  419— §228,  n.  (20)   (e). 
Whitmire  v.  Montgomery,  165  Pa.  253— §§186,  n.   (1)    (a);  228,  n. 

(22)  (e);n.  (25)  (a). 

Wickersham  v.  Russell,  51  Pa.  71— §228,  n.  (24)  (b). 
Wightman  v.  Pettis,  29  Pa.  283— §43,  n.  (9)   (h). 
Wike  v.  Woolverton,  26  Pa.  Super.  561— §228,  n.  (9)    (b). 
Wilbur's  Ap.,  10  W.  N.  C.  101— §44,  n.  (4)  (a). 
Wilcox  v.  Payne,  88  Pa.  154— §288,  n.  (1)    (a),  (b) ;  n.  (17)    (a) ;  n. 

(18)  (02). 
Wilcox  v.  Snyder,  22  Pa.  Super.  451— §§190,  n.  (12)   (c) ;  228,  n.  (25) 

(q). 

Wilcox  v.  Merrick,  23  Pa.  Super.  59— §242,  n.  (1)  (h). 

Wilkes-Barre  Record  v.  Luzerne  Co.,  6  Pa.  Super.  600 — §2,  n.  (7). 

Wilkins  Twp.  Road,  4  Sad.  299— §126,  n.  (4)  (o). 

Wilkins  v.  Boyce,  3  Watts  39— §228,  n.  (18)  (b). 

Wilkensburg  Boro.,  131  Pa.  365— §§56,  n.  (4)  (a) ;  126,  n.  (1)   (a). 

Wilkinson  v.  Boro.,  215  Pa.  486— §146  (A). 

William's  Est.,  140  Pa.  187— §228,  n.  (24)  (m4). 

William  Street,  13  Pa.  Super.  266— §43,  n.  (7)    (t). 

William  Street  Case,  13  Pa.  Super.  266— §183,  n.  (3)  (c). 

Williams  v.  Carr,  1  Rawle,  420— §§183,  n.  (4)   (i) ;  228,  n.  (21)   (a) ; 

n.  (22)   (w2). 
Williams  Typewriter  Co.  v.  Cleaver,  38  Pa.  Super.  376— §228,  n.  (23) 

(n). 

Williams  v.  Bently,  29  Pa.  272— §228,  n.  (23)   (h). 
Williams  v.  Church,  193  Pa.  120— §228,  n.  (18)  (a2). 
Williams  v.  Meadville,  31  Pa.  Super.  580— §228,  n.  (29)  (1). 
Williams  v.  Williams,  206  Pa.  644— §288,  n.  (18)  (b). 
Williams  v.  Williams,  34  Pa.  312— §§161,  n.  (5)  (f ) ;  228,  n.  (22)  (p)., 
Williams  v.  Com.,  29  Pa.  102— §228,  n.  (20)  (p). 
Williams  v.  Meadville,  31  Pa.  Super.  580— §228,  n.  (20)  (h2). 
Williams  v.  Phila.,  208  Pa.  282— §199,  n.  (1)  (e),  (f). 
Willock  v.  R.  R.,  229  Pa.  526— §196,  n.  (2)  (g) ;  page  513,  Ap. 
Wills  v.  Hardcastle,  19  Pa.  Super.  525— §§147,  n.  (4)  (f ),  (j) ;  148,  n. 

(2)  (b) ;  185,  n.  (1)  (j) ;  190,  n.  (12)  (a),  (b) ;  228,  n.  (25)  (a), 

(m). 
Wilson  v.  Keller,  195  Pa.  98—  §§11,  n.  (4)   (c) ;  140,  n.  (3)   (d) ;  190, 

n.  (12)  (a),  (b),  (d) ;  193,  n.  (3)  (a) ;  page  532,  Ap. 
Wilson  v.  Scranton,  141  Pa.  621— §189,  n.  (1)   (c). 
Wilson  v.  Snyder,  22  Pa.  Super.  451— §190,  n.  (12)   (b). 
Wills  v.  Kane,  2  Gr.  60— §228,  n.  (30)  (j). 
Wilmarth  v.  Mountford,  8  S.  &  R.  124— §228,  n.  (23)  (h). 

685 


Wil-Woo  TABLE  OF  CASES. 


Wilson  v.  Colwell,  3  Watts  212— §§43,  n.  (1)   (d) ;  182,  n.  (2)   (j). 

Wilson  v.  Gray,  8  Watts  25— §228,  n.  (3)   (b). 

Wilson  v.  Homer,  59  Pa.  155 — §161,  n.  (5)  (p). 

Wilson  v.  Mitchell,  101  Pa.  495— §228,  n.  (23)   (e). 

Wilson  v.  Trust  Co.,  225  Pa.  143— §50,  n.  (4)  (a). 

Wilvert  v.  Sunbury,  81%  Pa.  57— §§161,  n.  (5)   (f),  (p) ;  190,  n.  (13) 

(g). 

Winans  v.  Bnnnell,  13  Pa.  Super.  445— §228,  n.  (20)   (a) ;  n.  (25)   (p). 
Winger  v.  Rife,  101  Pa.  152— §228,  n.  (24)  (g4). 
Wingerd  v.  Fallen,  95  Pa.  184— §228,  n.  (23)   (e). 
Wingert  v.  Teitrick,  31  Pa.  Super.  187— §89,  n.  (1)  (a) ;  n.  (2). 
Winnett  v.  Ins.  Co.,  36  Pa.  Super.  517— §187,  n.  (1)  (b). 
Winslow  Bros.  v.  Du  Puy,  208  Pa.  98— §228,  n.  (18)   (b). 
Winsor  v.  Haddock,  64  Pa.  231— §228,  n.  (22)   (a),  (c2). 
Winter  Ave.,  23  Pa.  Super.  353— §126,  n.  (4)  (g),  (o). 
Winters  v.  Mowrer,  163  Pa.  239— §228,  n.  (20)   (c). 
Winther  v.  Railway,  159  Pa.  628— §228,  n.  (19)   (a). 
Winton  v.  Little,  9  W.  N.  C.  37— §228,  n.  (15)  (g). 
Wirsing  v.  Smith,  222  Pa.  8— §§185,  n.  (1)  (b) ;  228,  n.  (24)  (p2). 
Wise  v.  Allen,  9  Sad.  561— §228,  n.  (1)  (b) ;  n.  (17)  (a). 
Wisecarver  v.  Braden,  146  Pa.  42— §228,  n.  (30)   (f). 
Wistar's  Ap.,  115  Pa.  241— §45,  n.  (3)   (s). 
Withers  v.  Haines,  2  Pa.  435— §228,  n.  (24)   (k). 
Woeckner  v.  Motor  Co.,  187  Pa.  206— §228,  n.  (22)   (a2). 
Wojciechowski  v.  Johnowski,  16  Pa.  Super.  444 — §185,  n.  (3)   (a) ;  n. 

(4)   (a). 

Wolbert  v.  Trexler,  156  Pa.  112— §228,  n.  (22)    (a). 
Woldert  Grocery  Co.  v.  Wilkinson,  39  Pa.  Super.  100— §187,  n.  (1)  (b). 
Wolf  v.  Augustine,  197  Pa.  367— §228,  n.  (18)   (n). 
Wolf  v.  Christman,  202  Pa.  475— §228,  n.  (18)   (m). 
Wolf  v.  Ferguson,  129  Pa.  272— §§185,  n.  (2)  (h) ;  228,  n.  (1)  (b). 
Wolf  v.  Jacobs,  10  Pa.  Super.  54— §183,  n.  (2)   (j). 
Wolf  v.  Traction  Co.,  181  Pa.  399— §§228,  n.  (9)  (b) ;  242,  n.  (1)  (g) ; 

n.  (2)   (d). 

Wolf  v.  Wolf,  158  Pa.  621— §228,  n.  (20)  (g). 
Wolff  v.  Wilson,  25  Pa.  Super.  266— §§43,  n.  (1)  (f),  (h) ;  126,  n.  (5) 

(a). 
Wollenweber  v.  Ketterline,  17  Pa.  389— §228,  n.  (15)  (a),  (g) ;  n.  (25) 

(e). 

Wolverton  v.  Hart,  7  S.  &  R.  273— §228,  n.  (25)  (c),  (e). 
Wolverton  v.  Com.,  7  S.  &  R.  273— §187,  n.  (4)   (b). 
Wood  v.  Figard,  28  Pa.  403— §228,  n.  (19)  (b). 
Wood  v.  Kerkeslager,  227  Pa.  536— §50,  n.  (6)   (h). 
Wood  v.  Malone,  131  Pa.  554— §228,  n.  (20)   (a). 
Wood  v.  Mfg.  Co.,  22  Super.  138— §185,  n.  (1)  (b). 
Wood  v.  Boyle,  177  Pa.  620— §228,  n.  (13)  (1). 
Woodward  v.  Heist,  180  Pa.  16— §190,  n.  (12)  (a). 
Woodward  v.  Carson,  208  Pa,  144— §74,  n.  (1)  (t). 
Woodward  v.  Traction  Co.,  17  Pa.  Super.  576— §228,  n.   (9)    (c) ;  n. 

(24)  (p2);n.  (25)  (a). 

686 


TABLE  OF  CASES.  Woo- You 


Woodward  v.  Carson,  208  Pa.  144— §228,  n.  (24)  (z3). 

Woodwell  v.  Brown,  44  Pa.  121— §228,  n.  (22)   (o). 

Woolman  v.  Ice  Co.,  18  Pa.  Super.  596— §228,  n.  (23)   (h). 

Worden  v.  Connell,  196  Pa.  286— §228,  n.  (19)  (a). 

Work  v.  McClay,  2  S.  &  R.  415— §228,  n.  (20)  (c). 

Work  v.  Maclay,  14  S.  &  R.  265— §239,  n.  (2)   (b). 

Worrall  v.  Pyle,  132  Pa.  529— §228,  n.  (26)   (a),  (b). 

Wrasee  v.  Traction  Co.,  146  Pa.  417— §§228,  n.  (8)    (g) ;  239,  n.  (I) 

(a). 
Wray  v.  Spence,  145  Pa.  399— §§82,  n.  (1)  (a) ;  183,  n.  (2)  (r) ;  185, 

n.  (1)  (f);  228,  n.  (1)  (a) ;  n.  (19)  (a) ;  n.  (24)  (12). 
Wright's  Est.,  155  Pa.  64— §186,  n.  (2). 
Wright  v.  Milliken,  152  Pa.  507— §228,  n.  (30)  (f). 
Wright  v.  Small,  5  Bin.  204— §239,  n.  (1)  (a). 
Wright  v.  Wood,  23  Pa.  120— §228,  n.  (15)  (a);  n.  (26)  (a),  (f). 
Wruble  v.  Day,  34  Pa.  Super.  100— §43,  n.  (3)  (d3). 
Wust  v.  Iron  Works,  149  Pa.  263— §187,  n.  (1)  (b). 
Wyatt  v.  Szymanski,  38  Pa.  Super.  525— §146,  n.  (2)   (h). 
Wymard  v.  Deeds,  21  Pa.  Super.  332— §§183,  n.  (2)   (f ) ;  186,  n.  (1) 

(a),  (b). 

Wynn  v.  Bellas,  34  Pa.  160— §43,  n.  (2)   (s). 
Wyoming  Street,  137  Pa.  494— §80,  n.  (4). 

Yard  v.  Pancoast,  108  Pa.  384— §§88,  n.  (1)   (a) ;  228,  n.  (30)  (d). 
Yardley  v.  Cuthbertson,  108  Pa.  395— §§161,  n.  (5)   (t) ;  228,  n.  (20)' 

(a);n.  (22)  (k),  (w),  (12). 

Yeager's  Est.,  31  Pa.  Super.  202— §227,  n.  (2)   (c). 
Yeager  v.  Cassidy,  12  Pa.  Super.  232— §187,  n.  (4)  (a). 
Yeager  v.  Fuss,  9  W.  N.  C.  557— §161,  n.  (1)   (i) ;  n.  (5)   (b). 
Yeager  v.  Weaver,  64  Pa.  425— §161,  n.  (4)   (g). 
Yerger  v.  Hunn,  231  Pa.  245— §§184,  n.  (1)   (a) ;  n.  (3)   (a) ;  228,  n. 

(18)   (m). 

Yerkes  v.  Richards,  153  Pa.  646— §82,  n.  (2)  (b). 
Yerkes  v.  Wilson,  81%  Pa.  9— §228,  n.  (20)  (r). 
Yetter  v.  R.  R.,  206  Pa.  485— §11,  n.  (4)  (c). 
Yocum  v.  Bank,  195  Pa.  411— §228,  n.  (27)  (d). 
York  Haven  Water  Co.'s  Case,  218  Pa.  578— §43,  n.  (6)  (p). 
York  Haven  Water  Co.'s  Ap.,  212  Pa.  622— §228,  n.  (18)   (g). 
Yoast  v.  Beatty,  12  Pa.  Super.  219— §155,  n.  (1)   (h). 
Yost  v.  Clark,  25  Pa.  Super.  144— §§148,  n.  (1)   (f) ;  155,  n.  (1)   (a), 

(e). 

Yost  v.  Coyle,  226  Pa.  458— §228,  n.  (24)  (m4). 
Yost  v.  Davidson,  5  Pa.  Super.  469— §43,  n.  (3)  (m). 
Yost  v.  Yost,  38  Pa.  Super.  464— §182,  n.  (4)  (q2). 
Youghiogheny  River  Bridge,  2  Pa.  Super.  265— §228,  n.  (24)  (£3). 
Young's  Petition,  9  Pa.  215— §126,  n.  (1)  (a). 
Young's  Ap.,  2  P.  &  W.  380— §48,  n.  (1)  (r2). 
Young's  Est.,  204  Pa.  32— §228,  n.  (18)    (q). 
Young  v.  Com.,  6  Bin.  88— §228,  n.  (24)  (g). 
Young  v.  Merkel,  163  Pa.  513— §228,  n.  (21)  (h). 

687 


You-Zug  TABLE  OF  CASES. 


Youngman  v.  Miller,  98  Pa.  196— §228,  n.  (21)  (h). 
Yung's  Est.,  199  Pa.  35— §43,  n.  (7)  (j). 
Yungfleisch's  Ap.,  1  Walk.  125— §185,  n.  (2)  (a). 

Zartman  v.  Spangler,  21  Pa.  Super.  647— §§74,  n.  (1)  (s) ;  228,  n.  (24) 

(z3). 

Zeigler's  Petition,  207  Pa.  131— §228,  n.  (24(  (e). 
Zeigler  v.  Handriek,  106  Pa.  87— §228,  n.  (26)  (a). 
Zell  v.  Com.,  94  Pa.  258— §228,  n.  (11)   (a);  n.  (19)   (a). 
Zerbe  v.  Miller,  16  Pa.  488— §185,  n.  (1)  (b). 
Zerbey  v.  Allan,  215  Pa.  383— §150,  n.  (1)  (b). 
Zerger  v.  Sailer,  6  Bin.  24— §228,  n.  (22)  (n). 
Ziegler  v.  Handriek,  106  Pa.  87— §228,  n.  (1)  (c). 
Zimmerman  v.  Camp,  155  Pa.  152— §§187,  n.  (1)  (e) ;  n.  (4)  (f ),  (g) ; 

198,  n.  (1)   (e);  228,  n.  (28)   (f ) ;  232,  n.  (1)   (1). 
Zion  Congregation's  Ap.,  1  Mona.  635- — §48,  n.  (1)  (g). 
Zion  Church  v.  St.  Peters,  5  W.  &  S.  215— §229,  n.  (30)  (f). 
Zion's  German  Congregation's  Ap.,  1  Mona.  635— §228,  n.  (24)  (x3). 
Zugsmith  v.  Rosenblatt,  15  Pa.  Super.  296— §228,  n.  (19)  (a). 


688 


INDEX.  Aba-Amo 


INDEX. 

ABATEMENT. 

Not  to  be  caused  by  death  of  party.    §235. 

ABSENCE  OF  PAKTIES. 
Entry  of  non  pros.    §208. 

ABSTRACT  OF  PROCEEDINGS. 

Must  be  printed  in  paper-book.    §§190;  191;  192;  193;  194. 

ACCOUNTING. 

Appeal  in  action  for.    §49. 

ADMISSION  OF  ATTORNEYS.    See  Attorneys. 

AFFIDAVIT. 

That  appeal  was  not  taken  for  delay.    §132. 

Filing,  time  of.    §132,  n.  (2). 

Form.    App.  §§37-40. 

Who  may  make.    §132  and  n.  (1). 
Sureties  on  appeal  bond,  form.    §53,  Appendix. 

AFFIDAVIT  OF  DEFENSE. 

Appeal  from  refusal  of  judgment  for  insufficient.    §50. 
Refusal  of  judgment  for  part  of  claim.    §50  and  n.  (1). 
Filing  supplemental  affidavit  after  appeal.    §50  and  n.  (6). 

AFFIRMANCE  OF  JUDGMENT  ON  APPEAL. 
General  powers.     §228  and  n.  (1). 

AGREEMENT;  JURISDICTION  BY. 
Superior  Court.    §112. 

AGREEMENT  OF  ATTORNEYS. 

To  be  in  writing.    §227. 
AGREEMENT  OF  FACTS. 

Printing  in  paper-book.    §191. 

ALLOCATUR.    See  Special  Allocatur. 

AMENDMENTS. 

Allowed  at  any  time.    §232. 

What  defects  are  amendable.     §232,  n.  (1). 

What  defects  are  not  amendable.    §232,  n.  (2). 

Waiver  of  objection  to  amendment.     §232,  n.  (3). 

No  reversal  for  technical  defects  amendable  below.     §228,  n. 

(12),  (13). 

AMOUNT  IN  CONTROVERSY.    See  Superior  Court;  Supreme  Court. 
Certificate  of. 

Evidence  to  determine  amount.    §117  (C). 

Filing.    §117  (B)  and  n.  (1). 

Form.    App.  §34. 

689 
44 


Amount-Ap  INDEX. 


Printing.    §§190;  192;  195. 
Criterion  for  jurisdiction  on  appeal.     §§104  (A) ;  105  (A) ;  110 ; 

111;  117  (D)  and  n.  (3) -(5). 
How  determined. 

Claim,  amount  of.    §§105,  n.  (1) ;  111,  n.  (1) ;  117  (D)  and  n. 
(3)-(5). 

Chattels;  cases  involving  title  to.     §117  (A). 

Judgment;  amount  of.    §117  (D)  and  n.  (2). 

Kealty;  cases  involving  title  to.    §117  (A)  and  n.  (1). 

ANSWERS  TO  POINTS. 

Must  be  in  writing.     §§148;  149. 

Filing  of  record.    §§148;  149. 

Quoting  in  assignments  of  error.     §186  and  n.  (1). 

APPEAL.    See  Argument;  Assignments  of  Error;  Paper-Books;  Par- 
ties ;  Review  on  Appeal ;  Superior  Court ;  Supreme  Court. 
Argument  of.    See  Argument. 
Assignments  of  error.    See  Assignments  of  Error. 
Bail.    See  Bail  on  Appeal. 

Certifying  important  questions  to  Supreme  Court.    §124. 
Consolidation  of  appeals.    §118. 
Defined.     §182,  n.  (3). 

Erroneous  appeals;  certifying  to  proper  court.    §120. 
From  Superior  Court.    §128. 
Joint  and  separate  appeals.    §43,  n.  (7). 
Joint  appeals;  labor  claims.    §§75;  114;  118  (B). 
Name  of  proceedings;  to  be  called  appeal.    §§48  (C) ;  182. 
Paper-books.     See  Paper-Books. 
Parties.     See  Parties. 
Practice  on  taking  appeal. 
Entry  of  appeal 

Affidavit  as  to  delay,  etc.     §132. 

Who  may  make.     §132  and  n.  (1). 
Appearance  by  appellee.    §131,  n.  (1). 
Bond.    See  Bail  on  appeal. 
Cost  of  filing. 

Prothonotary  of  appellate  court.    §134  (A). 
Prothonotary  of  lower  court.    §134  (B),  (C). 
Filing  of  writ  and  affidavit;  time  of.     §132  and  n.  (2). 
Name  of  proceedings.    §§130 ;  182. 
Praecipe;  requirements  of.    §131. 
Rule  to  appear  and  plead.     §133. 
Special  allowance;  entry  after.    §§131,  n.  (1) ;  138. 
Certiorari  to  secure  record. 

Cost  of  special  writs.    §142. 

Custody  of  record.     §140,  n.   (2). 

Filing  in  lower  court  necessary  to  perfect  appeal.     §140 

and  n.  (3). 

Necessary  in  all  cases.     §140  and  n.  (1). 
Prothonotary;  duty  of,  to  forward  record.     §143. 

690 


INDEX.  Appeal 


Return  of  record.    §140. 

Remedy  for  failure  to  return  in  full.  §§141;  146. 
Special  writs  to  secure  whole  record.    §§141;  146. 
Filing  of  record  in  appellate  court. 
Effect  of  failure  to  file.     §144. 

Special  return  days  in  criminal  cases.     §§145;  218;  219. 
Time  of  filing,     §143. 
Perfecting. 

Certiorari;  filing  in  lower  court  necessary.     §140  and  n. 

(3). 
Time  of;  to  operate  as  supersedeas.  §167. 

On  appeal  from  Superior  Court.    §128  and  n.  (1). 
Computing  time.    §128,  n.  (1). 

Prior  appeal  by  adverse  party  does  not  affect  right.    §47. 
Record.     See  Record. 
Review  of  case.    See  Review  on  appeal. 
Scope  of  review.    §§48  (A)  and  n.  (1) ;  182  and  n.  (3). 
Second  appeal.    §43,  n.  (8). 
Special  allowance  of.    See  Special  Allowance. 
Supersedeas.    See  Supersedeas. 
Tax  on  appeal  not  allowed.    §139. 
Time  tor  taking. 

Appeal  from  lower  courts.    §126. 

Appeal  after  expiration  of  time.    §126,  n.  (1). 

Computation  of  time.    §§126,  n.  (3) ;  128,  n.  (1) ;  129. 

Effect  of  subsequent  proceedings.    §126,  n.  (4). 

Entry  of  judgment.    §126,  n.  (5). 

Exemption  not  allowed.    §127. 

Extension  of  time.     §127,  n.  (1). 

Premature  appeals.    §126,  n.  (6). 

Superior  Court ;  appeal  from.    §128. 

Under  special  acts.    §§49,  n.  (3) ;  56,  n.  (8) ;  80,  n.  (3) ;  97 

n.  (1);100,  n.  (i). 

To  what  court  appeal  lies.    See  Supreme  Court ;  Superior  Court. 
Waiver  of  appeal.    §§43,  n.  (9) ;  51,  n.  (2). 
When  allowed. 

Generally.    §§48  (A)  and  n.  (1) ;  182  and  n.  (3). 
Adverse  party;  appeal  not  precluded  by.     §47 
Constitutional  provision.     §42   (A). 
Correction  of  errors  of  inferior  courts.     §42  (B). 
Criminal  cases. 

Generally.     §46  (A)  and  n.   (7). 

Appeal  in  all  cases.    §46  (D). 

Appeal  by  commonwealth.    §46  (D)  and  n.  (12). 

Murder  and  voluntary  manslaughter.    §46  (B),  (C), 

(E),  and  n.   (9),'  (10). 
Equity  cases. 

Generally.  §44  (A). 

Injunction  cases.     §44  (B). 

Question  of  jurisdiction  of  equity.    §44  (C). 

691 


Appeal  INDEX. 


Judgments  at  law.     Civil  and  criminal  cases.     §43. 
Orphans'  court  cases.     §45. 
Eemedial  writs.     §42  (C). 
Statutory  proceedings. 

Appeal  only  where  expressly  given.     §§48   (A)    and  n. 

(1),  (4);182,n.  (3). 
Account.    §49. 

Affidavit  of  defense;  sufficiency  of.    §50. 
Arbitration  proceedings,    §51. 
Armories;  condemnation  proceedings.  §52. 
Attachment,  Domestic.     §62. 
Attorneys;  disbarment  proceedings.     §53. 
Auditors'  settlements.    §54. 
Banks;  fraudulent  insolvency.     §55. 
Boroughs. 

Decree  incorporating.    §56  (A). 
Land  damage  cases.    §56  (B)-(K). 
Municipal  liens.    §56  (L). 
Collateral  inheritance  tax  appraisement.   §57. 
Common  schools. 

Assessing  damages  for  school  purposes.  §58  (A)  (C). 
Assessing  damages  for  library  purposes.     §58   (B). 
Corporations. 
Generally. 

Abandonment  of  easement.     §59  (C). 
Forfeiture  of  franchises.    §59  (B). 
Land  damage  cases.    §59  (A)  and  n.  (1). 
Particular  companies. 

Boulevard  companies.     §59,  n.   (5). 
Bridge  companies,     §59,  n.  (6). 
Gas  companies;  proceedings  for  inefficient  ser- 
vice.    §§69;  81. 

Insurance  companies;  insolvency  or  fraud.  §73. 
Natural  gas  companies;  laying  of  pipes.  §81  (B). 
Pipe  line  companies. 

Forfeiture  and  escheat.    §86  (B). 
Land  damage  cases.    §86  (A). 
Plank  road  companies.    §87. 
Railroads;  land  damage  cases.    §90. 
Street  railways.  Page  iv. 

Telegraph  companies ;  forfeiture  and  escheat.  §95. 
Toll  bridges;  condemnation  proceedings.    §96. 
Turnpike   companies;    land    damage   cases   and 

proceedings  to  condemn.     §100. 
Water    companies;    proceedings    for    inefficient 

service.    §69. 
Counties. 

Condemnation  proceedings.  §§60  (C) ;  96  (C). 
Highways,  bridges  and  tunnels.  §60  (B),  (C). 
Public  buildings.  §60  (A). 

692 


INDEX.  Appeal 


Divorce.    §61. 

Domestic  attachment.  §62. 

Election  contests,  audits  of  election  expense  accounts.  §63. 

Escheat ;  proceedings  to  declare.    §§64  (B) ;  95. 

Estates  tail;  proceedings  to  bar.    §65. 

Execution  proceedings.     §§6   (A),  (B),  (C)  and  n.  (1), 

(2). 

Feigned  issue.    §§67;  83. 
Foreign  attachment.    §68. 
Ground  rent;  proceedings  to  extinguish.     §70. 
Injunctions;  granting  or  refusing  special  or  preliminary. 

§71. 

Insolvency;  final  order  in.    §§72;  73. 
Judgments;  opening,  vacating  or  striking  off.    §74. 
Judgments  for  insufficient  affidavit  of  defense.     §50. 
Judgments  n.o.v.    §88  (C)  and  n.  (3). 
Labor  claims;  joint  appeals.    §75. 
Lunatics  or  habitual  drunkards.     §76. 
Mandamus,     §77. 
Mechanics'  liens.     §78. 
Municipal  liens.    §79. 

Municipalities;  benefits  and  damages,  etc.    §§80;  96;  97. 
Non-suit;  refusing  to  set  aside.    §82. 
Orphans'   court   sales;   refusal  of  feigned  issue.     §§66 

(C) ;  83. 
Partition.     §84. 
Paupers;  removal  of.    §85. 
Plank  roads ;  proceedings  relating  to.    §87. 
Points  reserved.    §88. 

Quo  warranto.    §§86  (B) ;  89;  95;  204,  n.  (1)   (b). 
Real  estate;  proceedings  to  sell  or  quiet  title.  §91. 
Recognizance;  forfeited.    §92. 
Reference.  §93. 
Tax  assessments.    §94. 
Townships;  damages;  assessment  for  highways,  sewers 

and  parks.     §97. 
Trial  without  jury.     §98. 
Trustees;  proceedings  against.     §99. 
Turnpikes;  condemnation  of.     §100  (B). 
Weak  minded  persons ;  appointment  of  guardian.    §101. 

APPEARANCE. 

By  appellee.    §133. 
Form  of.    App.  §56. 

APPELLEE. 

Appearance  by.    §133. 

Form  of.    App.  §56. 
Paper-book  of;  contents.     §202. 

Form  of  paper-book.    App.  §58  (K). 

693 


App-Ass  INDEX. 


APPENDIX.    See  end  of  volume. 

Printing  in  paper-book.     §§190  and  n.  (11);  191;  192;  193;  194. 

ARBITRATION. 

Appeal  and  writ  of  error  from  award  in.     §51. 

ARGUMENT. 

Absence  of  parties;  non  pros.    §208. 

Agreements  of  attorneys  to  be  in  writing.     §227. 

Argument  list;  when  case  shall  be  placed  on.    §§206;  207. 

Call  of  cases.    §208. 

Continuance.     §220. 

Criminal  cases  in  Superior  Court.    §219. 

Daily  list.    §211. 

Ex  parte  hearing.    §224. 

General  requirements  of  argument  in  paper-book.     §§190;  191; 

192;  193;  194;  200;  202. 
Murder  cases;  when  heard.    §218. 
Order  of  hearing  counsel.    §222. 
Passing  case  on  list.    §221. 
Reargument;  practice.     §225. 
Scope  of  argument.     §220,  n.   (1). 
Short  cause  list.     §212. 

Certificate  of  counsel  as  to.    §214. 
Form  of.    App.  §60. 

Objection  by  opposing  counsel.    §215. 
Form  of.    App.  §61. 

Omitted  in  Superior  Court.    §213. 

Time  for  hearing.    §216. 

Time  allowed  for  argument.  §217. 
Special  cases  in  Superior  Court.  §210. 
Time  allowed  for  argument. 

General  list.    §223. 

Short  cause  list.    §217. 
Weekly  list;  assignment  of  cases.    §§209;  210. 

ARGUMENT  LIST.    See  Argument. 

ARMORIES. 

Writ  of  error  in  condemnation  proceedings  by.    §52. 

ASSIGNMENTS  OF  ERROR. 

Charge,  points  and  answers;  quoting.    §186  and  n.  (1) ;  pp.  522-3, 

Ap. 
Equity  cases. 

Question  of  remedy  at  law  must  be  raised  by  assignment. 
§184  (A). 

Only  matters  excepted  to  assignable.    §184  (B)  and  n.  (2). 
Evidence;  quoting.    §187;  page  520,  Ap.,  paper-book. 
Exceptions  taken  must  be  shown.    §187  and  n.  (4). 
Exceptions ;  bill  of ;  must  be  assigned  singly.    §185  and  n.  (4) . 
Filing  in  prothonotary's  office. 

Necessity  for.     §183  and  n.  (5), 

694 


INDEX.  Ass  of  Er 


Exception  in  case  of  fundamental  error.    §183,  n.  (5)  (e). 

Time  of  filing.    §183  and  n.  (6). 
Findings;  quoting.    §186  and  n.  (2). 

Form  and  contents.    §§183,  n.  (2) ;  184,  n.  (3) ;  198;  pp.  520-5,  Ap. 
General  assignments  not  allowed.    §185  and  n.  (2). 
Points  and  answers;  quoting.     §186  and  n.  (1). 
Points;  must  contain  only  one.    §185  and  n.  (3). 
Printing  in  paper-book.    §§183,  n.  (1) ;  190;  191;  192;  193;  194; 

198;  201. 

Question;  must  contain  only  one.    §185  and  n.  (5). 
Separate  specifications  required.    §185  and  n.  (2). 
Superior  Court;  appeals  from;  form  of  assignment.    §§188;  201. 
What  may  be  assigned.     §183,  n.  (3). 
What  may  not  be  assigned.    §183,  n.  (4). 
Witnesses;  names  to  be  given.    §187,  n.  (3). 
ATTORNEY  GENERAL.    Action  brought  by,  etc.,  Appeal.  §§104;110. 

ATTORNEYS. 

Admission  to  practice  in  Supreme  Court. 
Age  of  applicant.    §21,  n.  (2). 

Attorneys  of  two  years'  standing  at  date  of  rule.    §22. 
Credentials  of  applicant.    §22,  n.  (1). 

Form  of.     App.  §9. 
Certificate  of  recommendation.    §§21;  22,  n.  (2). 

Form  of.     App.  §11. 
Attorneys  from  other  states. 

Of  five  years'  standing.    §29. 

Form  of  application.  App.  §7. 
Of  one  year's  standing.    §30. 
Of  less  than  one  year's  standing.    §31. 
Certificate  of  membership.    §32. 

Form  of.    App.  §17. 

Endorsement  by  local  authorities.     §21,  n.  (3). 
Examination. 

Fees.     §§25;  26;  32. 
Final  examination. 

Age  of  applicant.    §26,  n.  (3). 
Attorneys  from  other  states. 
Of  five  years'  standing.    §29. 
Of  one  year's  standing.     §30. 

Form  of  application.    App.  §6. 
Of  less  than  one  year's  standing.     §31. 

Form  of  application.    App.  §10. 
Certificate  of  board.    §26,  n.  (6). 

Form  of.    App.  §11. 
Credentials.    §26,  n.  (2). 

Form  of.    App.  §§3,  4,  5. 
How,  when  and  where  conducted.     §28. 

Preliminary  requirements.     §26. 
Rules  governing  examination.    §26,  n.  (4),  (5), 
(6). 

695 


Attorneys  INDEX. 


Students  registered  at  date  of  rule.    §23. 
Subjects  required.    §27. 
Time  and  place  of  holding.   §§26,  n.  (1) ;  28. 
Preliminary  examination. 

Scope  and  requirements.     §24. 
Attorneys  from  other  states. 

Of  one  year's  standing.     §30. 
Of  less  than  one  year's  standing.     §31. 
Certificate  of  qualification  for  registration;  fees. 
§25  and  n.  (l)/(2). 
Form.  App.  §2. 
Time  for  filing.    §25,  n.  (3). 
Fees.    §25. 
Forms.     App.  §1. 

Rules  governing  examinations.     §24,  n.  (5). 
Subjects  of  examination.    §24,  n.  (6). 
Time  and  place  of  holding.    §24,  n.  (4). 
Practice  on  admission.    §32. 

Praecipe;  form.    App.  §12. 
Recommendation  of  state  board  required.    §21. 
Registration.    §§24;  25. 
Women  eligible.    §21,  n.  (1). 
Admission  to  practice  in  Superior  Court. 
Attorneys  from  other  states.    §33  (D). 
Certificate  of  membership;  form.    App.  §18. 
Members   of  Supreme  Court.    §33  (A). 
Members  of  common  pleas  at  date  of  rule.    §33  (B). 
Other  applicants  to  take  state  board  examination.     §33  (C). 
Practice  on  admission.    §33,  n.  (2). 
Praecipe;  form  of.    App.  §§12-14. 
Proof  of  qualifications.    §33,  n.  (1). 
Agreements  by.    §§156;  227;  App.  p.  532. 
Bail :  to  go  bail  only  by  court 's  order.    §166. 
Disbarment;  effect  of,  from  Supreme  Court.    §33,  n.  (3). 
Appeals  in  actions  to  procure.    §53. 

Lie  to  Supreme  Court.    §§103,  n.  (1) ;  107. 
Fees  of,  as  costs  in  case.    §§239;  242. 
Oath  of  office.     §32.    Form  of.    App.  §16. 
Officers  of  court.  J38,  n.  (1). 

Remarks  of,  on  trial  of  case;  review.    §§146,  n.  (2)   (d) ;  228.  n. 
(16) ;  p.  521,  Ap. 

AUDITORS. 

Appeal  allowed  from  report  of.    §54. 

Assignments  of  error  to  findings.    Ap.  pp.  537-8. 

Reference  to,  by  appellate  court,  in  appeals  from  0.  C.    §229. 

BAIL  ON  APPEAL. 

Amount  and  condition  of. 
Generally.     §163,  n.  (4). 
Conveyance;   directing  executions   of.     §172. 
Costs;  decree  for.     §176. 

696 


INDEX.  Bail 


Decree  within  more  than  one  class.    §177. 
Injunction;  decree  granting.    §173. 

Time  for  determination  where  injunction  is  made  per- 
manent.    §173,  n.  (2). 
Money;  directing  payment  of.    §169. 
Personal  property ;  directing  delivery  of.    §170. 
Realty;  judgment  involving  title  to.    §174. 
Trustee;  decree  removing.    §175. 
Entry  of. 

Approval  by  prothonotary.    §163. 
Approval  by  court  when  necessary.    §164. 
Additional  bail  on  appeal  from  Superior  Court.    §165. 
Fixing  amount  in  orphans '  court ;  form.    §55,  Appendix. 
Time  of,  to  effect  supersedeas.     §167. 
Where  entered.    §163. 
Form  of.    App.  §§52;  54. 
Sureties. 

Affidavit  of.    App.  §53. 
Liability  of.    §§163,  n.  (3) ;  169,  n.  (2). 
Who  may  not  become.    §166. 
When  required. 

To  effect  supersedeas,  except  in  certain  cases.    §168. 

To  secure  release  of  lien  of  judgment  on  taking  appeal.    §238 

(B). 
When  not  required. 

Eminent  domain  proceedings.    §174,  n.  (1). 

Municipality;  appeal  by.    §168. 

Prior  bond ;  entry  of.    §168. 

Representative  capacity;  appeal  in.    §168  and  n.  (2). 

State  officer;  appeal  from  settlement  of  account  of.    §168. 

Where  supersedeas  is  not  desired.    §168. 

BANKS. 

Appeal  in  fraudulent  insolvency  proceedings.     §55. 

BILL  OF  EXCEPTIONS.    See  Exceptions. 

Allowance  by  trial  judge  unnecessary.    §162. 

Contents  of  bill.    §161,  n.  (5). 

Form.    §31,  Appendix. 

Necessity  for  taking.  §§161,  n.  (1) ;  162. 

Sealing. 

Inability  of  judge  to  seal.    §161,  n.  (9). 

Remedy  for  refusal  to  seal.    §§161,  n.  (4) ;  161,  n.  (8). 
Form  of  petition  to  compel.  ^  App.  §§32 ;  49. 
Form  of  writ  directing  sealing.    App.  §33. 

Time  for  sealing  and  settling.    §161,  n.  (7). 

Unnecessary  under  late  act.  §162. 
When  to  be  taken. 

Civil  cases.    §161  and  n.  (3). 

Criminal  cases.    §§151;  161,  n.  (2). 
When  bill  cannot  be  taken.    §161,  n.  (4). 

697 


Bind-Cert  INDEX. 


BINDING  INSTRUCTIONS. 

Appeal   where  point   requesting  has  been   affirmed  or  declined. 

§88  (C). 
Review  on  appeal.     §228,  n.  (23). 

BOARD  OF  LAW  EXAMINERS. 

Creation  of;  term  of  office;  duties,  etc.     §20. 

BOND.    See  Bail. 

BOROUGHS. 

Appeal  from  proceedings  by  and  against. 
Decree  incorporating.    §56  (A). 
Land  damage  cases.     §56  (B)-(K). 
Municipal  liens.     §56   (L). 

BOULEVARD  COMPANIES.    Appeals.    §59,  n.  (5). 

BRIDGE  COMPANIES. 

Forfeiture  of  franchises;  bridges  excepted.     §59  (B),  n.  (6). 
Land  damages.  §§56  (I);  80  (A),  (B). 

BRIEF  OF  ARGUMENT. 

Citation  of  authorities.    §200;  Appendix,  page  527. 
Contents  of.     §199. 

Paper-book  of  appellee.  '§202;  Appendix,  §58  (K). 
Printing  in  paper-book  required.    §§190;  191;  192;  193;  194. 

CALL  OF  CASES.    See  Argument. 
CAPITAL  CASES.    See  Criminal  cases. 

CASE  STATED. 

Paper-books  in  appeal  from  judgment  on.    §191;  Ap.,  §58  (C). 

CERTIFICATE.    See  also  Attorneys,  for  certificates  as  to  character, 

qualifications  for  admission,  etc. 
Of  admission  to  Superior  Court;  form.    App.  §18. 
Of  admission  to  Supreme  Court;  form.   App.  §17. 
Of  amount  in  controversy. 

Cases  involving  title  to  realty.    §117  (A)  and  n.  (1). 

Evidence  to  determine  amount.    §117  (C). 

Filing.    §117  (B)  and  n.  (1). 

Form.    App.  §34. 

Printing  in  appellant's  paper-book.    §§190;  192;  195. 
Of  importance  of  question  involved,  to  obtain  appeal  from  Su- 
perior Court.     §124. 

As  to  whether  appeal  affects  entire  report  of  viewers.     §118  (C). 
Of  stenographer  to  notes  of  testimony.    §155;  Ap.,  p.  533. 
Of  judge  to  notes  of  testimony.    §155;  Ap.  p.  533. 
Of  counsel  that  case  will  be  a  short  cause.    §214.    For  form,  see 

App.  §60. 
Of  counsel  that  case  will  not  be  a  short  one;  form  of.     §§215; 

App.  §61. 

698 


INDEX.  Cert-Corn 


Of  counsel  that  cases  cited  are  not  in  State  Reports;  form  of. 

Appendix,  §59 ;  also  at  page  527. 
Certifying  appeal  to  other  courts. 

Appeals  to  different   courts  from  same  report   of  viewers. 
§118  (A),  (B). 

Appeals  taken  to  wrong  court.    §§118  (D) ;  120. 

When  same  question  is  involved  in  Supreme  Court.    §119. 

When  questions  involved  are  difficult  or  important.    §124. 

Cost  of.    §115. 

CERTIORAKI. 

Denned.    §182,  n.  (4). 

Form  of.    App.  §§41-48. 

Praecipe  for;  form.    App.  §§35;  36. 

Scope  of  review.    §§48  (B)  and  n.  (2);  182,  n.  (4). 

To  be  called  appeal.    §§48  (C) ;  130;  182. 

To  secure  record  on  appeal.     See  Appeals. 

When  allowed. 

Generally.    §§42;  48,  n.  (2) ;  182,  n.  (4). 

Criminal  cases.     §46  and  n.  (5). 

Habeas  corpus;  bringing  up  record.    §37,  n.  (2). 

Review  of  writ  to  justice  or  magistrate.     §111,  n.  (2). 

Statutory  proceedings,  to  test  regularity.     §48   (B)   and  n. 
(2). 

Turnpikes,  proceedings  to  condemn.  §100  (B),(D)  and  n.  (2). 

CHARGE   OF   COURT. 

Exceptions  to.    §§147,  n.  (4);  148,  n.  (2). 

Time  and  manner  of  taking.     §162. 

Printing  in  paper-book.    §190  and  n.  (8) ;  Ap.,  pp.  515-17. 
Quoting  in  assignments  of  error.    §186  and  n.  (1) ;  Ap.,  pp.  522-3. 
Review  of,  on  appeal.    §228,  n.  (19) -(20). 
Writing  and  filing.    §§147;  148;  149. 

CHIEF  JUSTICE. 

How  chosen.     §3   (A),   (B). 

Duties  in  contest  of  election  of  governor.     §3  (C). 

Salary.     §3,  n.  (1). 

CITATION  OF  AUTHORITIES. 

General  rules  governing  citation  in  paper-books.  §200;  Ap.  p.  527. 

CLAIM,  AMOUNT  OF.    See  Amount  in  Controversy. 

CLERICAL  ERRORS. 

Review  by  appellate  court.    §228,  n.  (12),  (28). 

COLLATERAL  INHERITANCE  TAX. 

Appeal  allowed  from  appraisement.  §57. 

COMMON  PLEAS. 

Appeal  from. 

Generally.  §§42;  43;  44. 

699 


Com-Corp  INDEX. 


Special  statutes.  §§48  to  101. 
To  Supreme  Court.     §104. 
To  Superior  Court.  §110. 
Testimony;  notes  of,  to  be  taken.     §153. 

COMMON  SCHOOLS. 

Appeal  in  condemnation  proceedings. 
For  school  purposes.     §58  (A),   (C). 
For  library  purposes.    §58  (B). 
COMMONWEALTH.    See  also  Attorney  General. 
Appeal  by. 

Collateral  inheritance  tax  assessments.  §57,  n.   (1). 
Criminal  cases.    §46  (D)  and  n.  (12). 
Exceptions  lay,  in  criminal  cases.     §151  and  n.  (3). 

COMPENSATION. 

Clerk  of  Supreme  Court  prothonotary.    §8,  n.  (2). 
Crier. 

Superior  Court.     §17   (B). 

Supreme  Court.     §8   (B). 
Deputy  prothonotary.     §8,  n.  (2). 
Prothonotary.     §8,   n.    (3). 
Reporter.     §§9,  n.  (2) ;  18. 
Superior  Court  judges.     §15. 
Supreme  Court  judges,  §6. 
Tipstaves. 

Superior  Court.     §17   (B). 

Supreme  Court.    §8  (B). 

CONSOLIDATION  OF  APPEALS.     §118. 
CONSTITUTIONAL  QUESTION.    Page  iv;  §121;  Ap.,  §27. 
CONTINUANCE. 

Allowed  for  cause  only.    §220. 

Passing  case  on  list.     §221. 

Withdrawing  juror,  etc.    Pp.  521-2;  §146,  n.  (2)  (d). 

CONVEYANCE. 

Decree  directing  execution  of;  appeal  from;  supersedeas.     §172. 
CORPORATIONS;  appeals  in  proceedings  by  or  against. 
Generally. 

Abandonment  of  easement.     §59  (C). 

Forfeiture  of  franchises.     §59   (B). 

Land  damage  cases.     §59   (A). 
Particular  companies. 

Boulevard  companies.     §59,  n.  (5). 

Bridge  companies.     §59,  n.    (6). 

Gas  companies;  impurity  or  deficiency  of  water.     §§69;  81. 

Insurance  companies;  insolvency  or  fraud.     §73. 

Natural  gas  companies.     §81   (B). 

Pipe  line  companies.     §86. 

Plank  road  companies.     §87. 

Railroad  companies;  land  damage  proceedings.     §90. 

700 


INDEX.  Corp-Crim 


Street  railways ;  land  damages.    Page  iv. 

Telegraph  companies;  forfeiture  and  escheat.     §95. 

Toll  bridges;  condemnation  of.     §96. 

Turnpike  companies.     §100. 

Water  companies.    §69. 

COSTS. 

Collection  of;  power  of  appellate  court  to  enforce.     §§11   (C) ; 

42  (D). 
Decree  for. 

Appeal  from;  when  supersedeas.    §176. 
Payment  of. 

By  county  in  pauper  case.    §239  (B). 

Party  finally  losing  case.  §§228  (C) ;  239  (A)  and  n.(2) ;  240. 

Where  cause  in  equity  is  transferred  to  law  side  of  court. 
§228  (C). 

Where  court  orders  part  of  evidence  omitted.     §156. 

Special  order  as  to  payment.    §239  and  n.  (3). 
Recovery  of. 

Power  of  Supreme  Court  to  direct.    §§38  (C) ;  42  (D). 

Special  orders  in  certain  cases.     §239,  n.  (3). 
Security  for,  on  appeal.    See  Bail  on  Appeal ;  Supersedeas. 
What  included. 

Attorney's  fee.     §239  (A). 

Attorney 's  fee  as  penalty  for  taking  appeal  for  delay.    §242. 

Certifying  case  to  Supreme  Court  from  Superior  Court.  §115. 

Costs  incurred  below.     §239,  n.  (4). 

Paper-books;  printing.    §§156;  240. 

Penalty  for  taking  appeal  for  delay;  attorney's  fee,  dam- 
ages and  interest.     §242. 

Petition  for  allowance  of  special  allocatur.     §137. 

Prothonotaries'  fees. 

Prothonotary  of  appellate  court.     §§134  (A);  137;  142; 

239  (A) ;  241. 

Prothonotary  of  lower  court.    §§134  (B) ;  239  (A). 
Prothonotary  of  lower  court  in  Phila.  county.    §134  (C). 

Special  writs  and  petitions.  §§137;  142;  241. 

Transcript  of  testimony.    §§158;  159;  160. 
When  allowed.    §239,  n.  (1). 

COUNTIES. 

Appeal  and  writ  of  error  in  condemnation  proceedings  by.    §§60; 
96  (B). 

COURT  CRIER. 

Appointment;  salary.    §8  (B). 

CRIMINAL  CASES. 

Argument;  when  heard.     §§218;  219. 
Costs;  payment  by  county  in  certain  cases.     §239  (B). 
Defendant;  appeal  by,  in  all  cases,  is  of  right.     §46  (A),   (B), 
(D),   (E)   and  n.   (9)  and   (11). 

701 


Crim-Disc  INDEX. 


Exceptions  to  charge;  answers  to  points.     §149. 

Exceptions  to  evidence.     §151. 

New  trial  nunc  pro  tune  in  murder  cases.     §226. 

Notice  of  appeal  to  governor  in  capital  cases.    §46,  n.  (9)   (d). 

Paper-book;  service  of.     §203   (B).    Form  of.     Ap.  §58  (G). 

Return  days;  special.     §§145;  218;  219. 

Review  of  law  and  evidence  in  capital  cases.     §§46  (C) ;  230. 

Supersedeas;  special  allocatur  necessary.    §179  and  n.  (2). 

Petition  for  allowance;  form  and  practice.     §§180;  181. 
Testimony,  notes  of,  to  be  taken.     §153. 

CRIMINAL  COURTS. 

Power  of  Supreme  Court  justice  to  hold.    §35  (A)  and  n.  (1). 

DAILY  LIST.    See  Argument. 

DAMAGES.     See  also  Land  Damages. 

As  costs  for  taking  appeal  for  delay.    §242. 

Awarded  by  Supreme  Court  in  mandamus  proceedings.    §38  (C). 

DEATH  OF  PARTY. 

Survival  of  action  in  case  of.     §§43,  n.  (10)  ;  235. 
Substitution  of  party.  §131;  Ap.  §57;  p.  507. 

DECISION  OF  COURT. 

Exceptions  to,  unnecessary.     §162  (B). 

DECREE.     (See  also  Judgments.) 

Exceptions  to,  unnecessary.     §162   (B). 
Final  decree  in  equity  case.     §44,  n.  (5). 
Final  decree  in  orphans'  court.     §45,  n.  (2). 
Formal  decree  necessary  to  appeal.     §44,  n.  (3). 
Interlocutory  decree  in  equity  case.     §44,  n.  (6). 
Interlocutory  decree  in  orphans'  court.     §45,  n.  (3). 
Printing  in  paper-book.  §193.    Form  of  book,  p.  536. 
Pro  forma  decree  insufficient.    §44,  n.  (4). 

DEPUTY  PROTHONOTARY. 

Appointment;  salary.    §8,  n.  (2). 
DIMINUTION  OF  RECORD. 

Certiorari;  form  of.    App.  §§50;  51. 

Petition;  form  of.    App.  §49. 

When  record  is  incomplete.     §141. 
DISBARMENT. 

Appeal  in  proceedings  to  secure.     §53. 

Appeal  from,  lies  to  Supreme  Court.     §§103,  n.  (1) ;  107. 

Effect  of  disbarment  by  Supreme  Court.    §33,  n.  (3). 
DISCONTINUANCE. 

Form.     §62,  Appendix. 

When  allowed.     §236. 
DISCRETION  OF  LOWER  COURT. 

Review  on  appeal. 

Attorneys;  proceedings  against.     §53,  n.    (2). 

702 


INDEX.  Disc-Eq 


Divorce  proceedings.    §61,  n.  (2)   (d). 

Execution  proceedings;  refusal  of  issue.    §66,  n.  (1). 

Injunction  proceedings.     §71,  n.   (1). 

Judgments;   opening;  vacating  on  striking  off,  or  refusing 

same.     §74,  n.   (1)    (s). 
Miscellaneous  matters.     §228,  n.   (24). 
Non-suit;  granting  or  refusing.  §§82,  n.  (1) ;  228,  n.  (24)  (12). 

DISTRICTS. 

Supreme  Court.     §7  and  n.  (1),  (3);  App.  §§20-21. 
Superior  Court.    §16;  App.  §22. 

DIVORCE. 

Appeal  from  decree  allowed.  §§61;  182,  n.  (3)   (d). 
Appeal  lies  to  Superior  Court.     §113. 

Review  of  evidence  by  appellate  court.  §§61,  n.  (2) ;  228,  n. 
(18)  (b2)-(e2). 

DOCKET  ENTRIES. 

Printing  in  paper-book.  §190  and  n.  (3) ;  191;  192;  Ap.  pp.  535-7. 

DOCUMENTARY  EVIDENCE. 

Must  be  copied  in  assignments  of  error.    §187  and  n.  (2). 
Printing  in  paper-book.    §§192;  193;  Ap.  p.  521. 

DOMESTIC  ATTACHMENT. 

Appeal  from  decree  allowed.    §62. 

DRAWINGS  AND  PLANS. 

Printing  in  paper-book.     §§192;  193. 

ELECTION  CONTESTS. 

Appeal  from  proceedings  where  judiciary  is  involved.  §63  (B), 
(C),  (D). 

Supersedeas  in,  pending  appeal;  special  allocatur  necessary. 
§179. 

Judicial  office.    §2,  n.  (6). 

Duty  of  chief  justice  of  Supreme  court  in  case  of  contested  elec- 
tion of  governor.  §3  (C). 

ELECTIONS.    See  Election  Contests. 

Appeal  from  audit  of  expense  accounts  and  in  case  of  contest. 

§63  (A). 
Supreme  Court  judges. 

Contested  elections.     §63  (B),  (C),  (D). 

Limited  vote.     §2  (B). 

Qualifications  of  electors.     §2  (A)  and  n.  (1). 

Time  of  holding  elections.    §2  (A)  and  n.  (7). 

Vacancies.     §4. 

EQUITY. 

Assignments  of  error  in  equity  cases.    §184. 
Exception  to  evidence  required.     §150,  n.   (2). 
Final  decree;  appeal  from.    §44  (A). 
Final  decrees;  what  are.    §44,  n.  (5). 

703 


Equity  INDEX. 


Findings  must  be  filed.     §150. 

Interlocutory  decrees;  what  are.     §44,  n.  (6). 

Jurisdiction;  appeal  from  question  as  to.     §44  (C). 

Paper-books  in  appeals  in.    §193.    Forms  of.    Ap.  §58  (D). 

Remedy  at  law;  review  of  question  of.     §228   (C). 

Special  injunction;  appeal  from  granting  or  refusing.    §§44  (B) ; 

71. 
EQUITY  RULES. 

Equity  rules  established.     §§11  (B),  (D)  and  n.   (4);  42,  n.  (1) 

(f). 
Supreme  Court   Rules   binding   in   Superior  Court.     §§19;   213, 

n.   (1). 
ESCHEATS. 

Appeal  or  writ  of  error  in  proceedings  to  declare.     §64. 

ESTATES  TAIL. 

Appeal  or  writ  of  error  in  proceedings  to  bar.     §65. 

ESTOPPEL. 

When  estoppel  arises.     §228,  n.  (31). 

EVIDENCE.  See  Bill  of  Exceptions;  Exceptions. 
Printing  as  costs  in  case.    §§156;  240. 
Printing  in  paper-book.    §§156;  190  and  n.  (12),  (13) ;  191;  192; 

193  and  n.  (3) ;  198  and  n.  (1) ;  Ap.  pp.  520-1,  529-33. 

Agreement  as  to  omission  of  evidence.    §156;  Ap.  p.  532. 
Quoting  in  assignments  of  error.    §187  and  n.  (1) ;  Ap.  pp.  519-21. 

Bill  of  exceptions  to  be  quoted.  §187,  n.(4)  (f ) ;  Ap.  pp.  519-21. 

Documentary  evidence  to  be  printed.     §187,  n.  (2). 

Names  of  witnesses  must  be  given.    §187,  n.  (3). 
Review  of,  by  appellate  court.    §228,  n.  (18),  (21),  (25),  (26). 
Review  of,  in  capital  cases.    §§46  (C) ;  230. 
Stenographic  notes  of. 

Certificate  of  trial  judge.    §155. 

Certificate  of  stenographer.     §155. 

Common  pleas  and  criminal  courts.     §153. 

Correcting  notes;  power  of  court.     §155,  n.  (2). 

Cost  of  transcript;  by  whom  payable.     §§158;  159;  160. 

Daily  transcript  may  be  required.    §157. 

Filing  notes  when  transcript  not  required.     §158. 

Filing  of  transcript;  certification;  practice.    §155. 

Hearing  before  examiner,  etc.,  §160. 

Orphans'  court.     §152. 

When  transcript  to  be  made.     §§154;  160. 

EX  PARTE  HEARING. 

When  allowed.    §224. 

EXAMINER;  transcript  of  testimony  taken  before.  §160. 

EXCEPTIONS.     (See  Bill  of  Exceptions.) 

Allowance  by  court  unnecessary.    §162. 
Assignment  of  error  must  show.    §187  and  n.  (4). 


INDEX.  Exceptions 


Assignment  for  error  must  be  made  singly.  §185. 
Commonwealth;  right  of,  to  take.  §§46  (D)  and  n.  (12); 

151  and  n.  (3). 

Defendant  in  criminal  case.    §46. 
Formal  bill  not  required.     §162. 

Necessary  for  review  of  case  on  appeal.    §228,  n.  (10),  (11). 
Necessary  to  assign  matters  for  error.     §184  (B). 
Printing  in  paper-book.    §§193;  194;  Ap.  pp.  516,  519-25. 
Time  for  taking.    §§161,  n.  (6) ;  162. 
Time  for  filing;  trial  by  court  without  jury.    §§98  (B)  and  n. 

(2);161,n.  (7).    ' 
When  required. 

Generally.    §161,  n.  (3). 

Affidavit   of   defense;    refusing  judgment   for   insufficiency. 

§50   (A)   and  n.   (2). 

Additional  exception ;  refusing  leave  to  file.    §161,  n.  (3)  (n). 
Amendment  to  statement;  refusal  to  allow.    §161,  n.  (3)  (j). 
Answers  of  court  to  question  of  juror.    §161,  n.  (3)   (r). 
Attachment  proceedings.     §161,  n.  (3)    (m). 
Auditors;  exceptions  on  appeals  from  reports  of.     §54  (B) 

and  n.  (3). 

Binding  instructions;  refusal  of.  §161,  n.  (3)  (g). 
Change  of  venue;  refusal  to  grant.  §161,  n.  (3)  (i). 
Charge  and  opinion  of  court.  §§147,  n.  (4) ;  148,  n.  (2) ; 

161  (C). 

Criminal  cases.    §§46;  151;  161,  n.  (1). 
Equity  cases.     §184  (B)  and  n.  (2). 
Evidence,  admission  or  rejection  of.    §§151;  161  and  n.  (1), 

(3);  228,  n.  (10),  (11) 

Findings  in  case  of  trial  without  jury.  §98  (B)  and  n.  (1),  (2). 
Findings  in  equity  cases.    §150,  n.  (2). 

Jury;  occurrences  during  deliberations  of.     §161,  n.  (3)   (s). 
Jury,  remarks  before.    §§146,  n.  (2)   (d) ;  228,  n.  (16). 
New  trial;  refusal  of.     §161,  n.  (3)   (h). 
Non-suit;  refusal  to  take  off.     §82,  n.  (2). 
Points  reserved;  judgment  on.    §88,  n.  (1). 
Reference  under  Act  1874.     §93  and  n.  (1). 
Remarks  of  counsel.    §§146,  n.  (2)  (d) ;  228,  n.  (16). 
Remarks  of  judge  to  counsel.    §161,  n.  (3)   (p). 
Removal  order;  appeal  from.     §85,  n.  (2). 
Statement;  sending  out  with  jury.     §161,  n.  (3)   (q). 
Trustees,  actions  against.     §99,  n.  (2). 
Verdict,  time  and  place  of  rendering.    §161,  n.  (3)   (t). 
When  not  required. 

Decision  of  court  appearing  on  record.    §162  (B). 
Fundamental  errors  appearing  on  record.    §228,  n.  (11)   (e). 
Judgment  for  insufficient  affidavit  of  defense;  making  rule 

absolute.    §50,  n.  (2)  (c). 
When  not  allowed.     §161,  n.  (4). 


705 
45 


Exces-Form  INDEX. 


EXCESSIVE  VERDICT,  review  of.     §228,  n.  (9). 

EXECUTION. 

Appeal  and  writ  of  error  allowed  in  proceedings.     §66. 
Joint  appeals  not  allowed.     §66,  n.  (5). 

EXEMPTION. 

From  requirement  as  to  time  for  appeal.     §127. 

FEES.      See  Costs. 

Prothonotary  of  appellate  court.    §§134  (A);  137;  142. 
Prothonotary  of  lower  court.     §134  (B),  (C). 
Prothonotary  in  Philadelphia  county.     §134  (C). 
State  board  of  law  examiners.  §25. 

FEIGNED  ISSUE. 

Appeal  from  judgment  in.     §67. 
Appeal  from  refusal  of.     §66   (C). 
Review  on  appeal.    §67,  n.  (1). 

FILING. 

Affidavit  of,  no  delay.    §132. 

Time  of  filing.    132,  n.  (2). 
Assignments  of  error;  necessity  for;    §183  and  n.  (5). 

Time  for  filing.    §183  and  n.  (6). 
Certificate  of  amount  in  controversy.    §117  (B). 
Certificate  of  judge  and  stenographer  as  to  notes.    §155. 
Certiorari  in  court  below.     §140. 
Charge  of  court.      §§147;  148;  149. 
Daily  transcript  of  notes.    §157. 
Findings  in  equity  cases.    §150. 

Notes  of  testimony,  when  transcript  is  not  required.     §158. 
Opinion  of  court.     §§9,  n.  (6) ;  147. 
Paper-books.     §9,  n.  (6.) 
Record  in  appellate  court.    §§141;  144;  146. 
Transcript  of  notes  of  testimony.    §§155;  156. 

FINAL  JUDGMENTS. 

Necessity  for.    §§43,  n.  (1) ;  46,  n.  (1) ;  54,  n.  (2) ;  90,  n.  (1). 
What  are.     §§43,  n.  (1),  (2) ;  46,  n.  (2) ;  78,  n.  (2. 

FINDINGS. 

Exceptions  to;  when  required. 

Equity  cases.     §150,  n.   (2). 

Trial  without  jury.    §98  (B)  and  n.  (1),  (2). 
Filing  as  part  of  record ;  equity  cases.     §150. 
Printing  in  paper-book.    §§192;  193;  Ap.  §58  (B),  (D),  (E). 
Quoting  in  assignments  of  error.    §186  and  n.  (2). 
Review  of,  on  appeal.    §§228,  n.  (18) ;  229. 

FOREIGN  ATTACHMENT. 

Appeal  from  judgment  in.     §68. 

FORM  OF  ACTION. 

Statement  in  paper-book.    §§190;  191;  192;  Ap.  pp.  511-12. 

706 


INDEX.  Forms 


FORMS. 

Affidavit  of  sureties;  approval  by  court.    App.  §53. 

Affidavit  on  appeal.     App.  §§37-40. 

Amount  in  controversy;  certificate  of.    App.  §34. 

Appeal;  petition  for  special  allowance  of,  from  Superior  Court. 

App.  §27. 

Appearance ;  order  for.    App.  §56. 
Attorneys. 

Admission  to  practice. 

Attorney  admitted  to  practice  in  common  pleas.     App. 

§9- 
Attorney  of  five  years'  standing  in  another  state.  App. 

§7. 

Certificate;  Superior  Court.  App.  §18. 
Certificate;  Supreme  Court.  App.  §17. 
Certificate  of  recommendation  from  state  board.  App. 

§11- 
Praecipe;  Superior  Court.    App.  §§13-15. 

Supreme  Court.    App.  §12. 

Admission  to  practice  in  other  state;  certificate  recommend- 
ing.   App.  §19. 
Examination,  final. 

Application  by  attorney  from  another  state.    App.  §10. 
Application  by  attorney  of  one  year's  standing  in  an- 
other state.    App.  §6. 

Application  by  law  office  student.     App.  §4. 
Application  by  the  law  school  student.     App.  §3. 
Application  by  one  who  has  studied  partly  in  law  office 

and  partly  in  law  school.    App.  §5. 
Application    by    student    registered    prior    to    January, 

1903.     §23;  App.  §8. 

Examination,  preliminary;  application  for.     App.  §1. 
Oath  of.    App.  §16. 

Registration,   certificate  recommending.     App.   §2. 
Bail.    Ap.  §§52;  54. 
Bill   of  exceptions.     App.   §31. 

Petition  to  compel  sealing  of.    App.  §32. 
Writ  directing  sealing  of.    App.  §§33 ;  49. 
Bond  for  appeal. 

Common  pleas.    App.  §52. 
Orphans'  court.    App.  §54. 
Certificate. 

Of  admission  to  Superior  Court.    App.  §18. 

Of  admission  to  Supreme  Court.     App.  §17. 

Of  amount  in  controversy.    App.  §34. 

Of  character  of  applicant  for  final  examination.    App.  §§3; 

6;  8;  10. 

Of  character  of  member  of  common  pleas  applying  for  ad- 
mission to  Supreme  Court.     App.  §9. 

Of  counsel  that  cases  cited  are  not  in  State  Reports.    App. 
§59. 

707 


Forms  INDEX. 


Of  counsel  that  case  is  not  a  short  one.  App.  §61. 

Of  judge  and  stenographer  as  to  record.     App.  p.  533. 

Of  good  moral  character  of  applicants  for  preliminary  exami- 
nation.   App.  §1. 

Of  character  of  attorney  from  another  state.    App.  §7. 

Of  Supreme  Court  recommending  admission  to  bar  of  another 
state.    App.  §19. 

Of  state  board,  recommending  admission.    App.  §11. 

Of  state  board  recommending  registration.    App.  §2. 
Certiorari;  for  record.    App.  §§41-48. 

Praecipe  for.    App.  §§35-36. 
Diminution  of  record. 

Certiorari.    App.  §§50;  51. 

Petition.     App.  §49. 
Discontinuance;  order  of.    App.  §62. 

Districts,  terms  and  return  days;  Superior  Court.    App.  §22. 
Districts,  terms  and  return  days;  Supreme  Court.   App.  §§20;  21. 
Exceptions. 

Bill  of.    App.  §31. 

Petition  to  compel  sealing.    App.  §32. 
Writ  directing  sealing.    App.  §§33;  49. 
Habeas  corpus. 

Petition  for.    App.  §26. 

Jurisdiction  of  Superior  Court;  objection  to.    App.  §28. 
Mandamus;  petition  for.     App.  §25. 
Motion  to  quash.    App.  §65. 

New  trial  nunc  pro  tune;  petition  for  rule  for.    App.  §69. 
Non  pros ;  petition  for  rule  to  take    off.    App.  §66. 
Objection  to  jurisdiction  of  Superior  Court.    App.  §28. 
Paper-books.    See  Paper-Books  and  "Table  of  Contents — Appen- 
dix" at  beginning  of  Vol.    §58  Ap.  (A)-(K). 
Parties;  substitution  of.    App.  §57. 
Penalty  for  taking  appeal  for  delay;  petition  for.   App.  §63. 

Rule  for.    App.  §64. 
Petition. 

Diminution  of  record. 

Certiorari;  Superior  Court.    App.  §51. 
Certiorari;  Supreme  Court.  App.  §50. 
Petition  and  decree.    App.  §49. 

Habeas  corpus.    App.  §26. 

Mandamus.    App.  §25. 

New  trial  nunc  pro  tune;  rule  for.    App.  §69. 

Penalty  for  taking  appeal  for  delay;  rule  to  impose.  App.  §63, 

Quo  warranto.     App.   §24. 

Eeargument.    App.  §67. 

Special  allowance  of  appeal  from  Superior  Court.   App.  §27. 

Special  allowance  of  supersedeas.    App.  §30. 

To  certify  case  to  Supreme  Court.    App.  §29. 

To  compel  sealing  of  exceptions.    App.  §§32;  49. 

708 


INDEX.  Forms-Hear 


Praecipe. 

Admission. 

To  Superior  Court.    App.  §§13-15. 
To  Supreme  Court.    App.  §12. 

Certiorari. 

Superior  Court.    App.  §36. 
Supreme  Court.    App.  §35. 
Quashing  appeal;  motion  for.    App.  §65. 
Quo  warranto;  petition  for.    App.  §23. 

Affidavit  accompanying.    App.  §24. 
Reargument;  order  and  rule  on  petition  for.    App.  §68. 

Petition  for.    App.  §67. 
Remittitur. 

Superior  Court.    App.  §71. 

Supreme  Court.    App.  §70. 
Return  days. 

Superior  Court.     App.  §22. 

Supreme  Court.    App.  §21. 
Security;  fixing  amount  of.    App.  §55. 
Short  list;  certificate  to  remove  case  from.  App.  §61. 

Order  to  put  case  on.    App.  §60. 
Special  allowance  of  appeal  from  Superior  Court;  petition.    App. 

§27. 

Special  allowance  of  supersedeas ;  petition  for.    App.  §30. 
Supersedeas;  petition  for  special  allowance  of.    App.  §30. 
Terms  and  return  days. 

Superior  Court.    App.  §22. 

Supreme  Court.     App.  §§20;  21. 

GAS  COMPANIES.    See  Natural  Gas  Companies. 
Appeal  in  proceedings  against.  §69. 

GROUND  RENT. 

Appeal  in  proceedings  to  extinguish.     §70. 

HABEAS  CORPUS. 

Hearing.     §37,  n.   (2). 

Petition  for;  certiorari.     §37,  n.   (2). 

Form  of.    §26,  Appendix. 

Superior  Court;  original  jurisdiction  of.   §41. 
Superior  Court;  when  writ  cannot  issue  from.    §111,  n.  (3). 
Supreme  Court;  original  jurisdiction  of.     §§37;  42  (C). 

HARMLESS  ERROR. 

Review  by  appellate  court.    §228,  n.  (25)-(29). 

HEARING.     See  Argument;  Review  on  Appeal. 
Account;  preliminary  liability  to.    §49  (A). 
Habeas  corpus.     §37,  n.   (2). 

Injunction  proceedings;  may  be  heard  in  any  district.     §71. 
Mandamus  to  lower  courts.    §38  (B),  (C). 
Rule  for  new  trial  in  murder  cases.     §226. 

709 


Hist-Judg  INDEX. 


HISTORY  OF  CASE. 

Form  and  contents.  §197. 

Must  be  printed  in  paper-book.     §§190;  191;  192;  193;  202. 

INDEX  OF  PAPER-BOOK.     §189;  Ap.  pp.  508-10. 

INJUNCTIONS. 

Appeal  from  decree  on  application  for.     §§44  (B) ;  71. 
Decree  granting;  appeal;  when  supersedeas.     §173. 
Original  jurisdiction  of  Supreme  Court.     §§35;  36. 
Review  on  appeal.     §71,  n.  (1). 

INSOLVENCY.    Appeal  from  final  order  in.     §§72 ;  73. 

INSTRUCTIONS.    See  Charge;  Points  and  Answers. 
Answer  to  request  for.     §228,  n.  (22). 
Binding  instructions;  review.     §228,  n.  (23). 
Particular  instructions;  failure  to  make  request.     §228,  n.   (19). 

INSURANCE  COMPANIES. 

Appeal  from  proceedings  for  insolvency  or  fraud.    §73. 

INTEREST.    See  also  Parties. 

As  costs  for  taking  appeal  for  delay.    §242. 

INTERLOCUTORY. 

Decrees;  what  are.    §§44,  n.  (6);  45,  n.  (3). 
Judgments;  what  are.    §§43,  n.  (3) ;  46,  n.  (3). 
Orders;  petition  for;  practice.     §§180;  181. 

ISSUE. 

Statement  of,  in  paper-book.     §§190;  191;  192;  Ap.  p.  511. 

JOINT  ACTIONS. 

Husband  and  wife;  appeal  from  judgments.     §106. 

JOINT  APPEALS. 

Generally.     §43,  n.  (7). 

Auditors'  settlements.    §54  (A). 

Boroughs,  incorporation  of.    §56  (A)  and  n.  (4)   (a). 

Execution  proceedings.     §66,  n.   (5). 

Labor  claims.     §§75;  114. 

Viewers,  report  of.     §§56,  n.  (6)    (d) ;  118  (B). 

JUDGES.    See  Bill  of  Exceptions ;  Supreme  Court ;  Superior  Court. 
Certificate  to  notes  of  testimony.    §155 ;  Ap.  p.  533. 

JUDGMENTS.    See  Decrees. 

Amount  of.    See  Amount  in  Controversy. 

Appeal  from,  in  proceedings  to  open,  vacate  or  strike  off.     §74. 

Entry  of,  required  before  appeal.    §126,  n.  (5). 

Entry  of,  on  affirmance.    §§50  (B) ;  228  and  n.  (1). 

Entry  of,  on  reversal.    §228  and  n.  (3). 

Final. 

Necessity  for.    §§43,  n.  (1) ;  46,  n.  (1) ;  54,  n.  (2) ;  90,  n.  (1). 

What  judgments  are  final.     §§43,  n.   (1)   and  n.   (2) ;  46,  n. 
(2);  78,  n.  (2). 

710 


INDEX.  Judgt-Mech 


Interlocutory. 

What  judgments  are  interlocutory.     §§43,  n.  (3);  46,  n.  (3). 
Lien  of.    §238  (A).    Release  of  lien  on  taking  appeal.    §238  (B). 
Noting  in  minute  book  and  entry  by  prothonotary.     §237. 
Printing  in  paper-book.    §§190  and  n.  (5);  191;  192;  193. 
Part  of  claim;  refusal  of.      §50,  n.  (1). 
Review  of;  by  appellate  court.    §228. 

Affirmance  on  appeal.     §228  and  n.   (1). 

Modification  of,  on  appeal.    §228  and  n.  (4),  (5). 

Reversal,  on  appeal.     §228  and  n.   (2). 

JUDGMENT  NON  OBSTANTE  VEREDICTO. 
Appeal  from  judgment  on.    §88  (C). 

JUDICIAL  POWER.     See  Supreme  Court;  Superior  Court. 
How  vested.     §1   (A). 
Uniformity  required.    §1  (B)  and  n.  (3). 

JURISDICTION.    See  Certiorari;  Supreme  Court;  Superior  Court. 
Review  of  question  as  to;  in  equity  case.  §44  (C). 
Review  to  ascertain.     §§48  (B)  and  n.  (2) ;  85,  n.  (1)   (e) ;  183, 
n.  (2)  (r),  n.  (3)  (c),  (5)  (e) ;  228,  n.  (11)  (e)  and  (f). 

LABOR  CLAIMS. 

Appeal  to  Superior  Court.  §114. 

Hearing.     §75. 

Joint  appeals  allowed.     §75. 

LAND  DAMAGES. 

Appeal  from  proceedings  to  assess.  §48  (A) ;  see  also  appropriate 
headings  for  particular  acts  giving  right  to  appeal  in  special 
proceedings. 

LIEN. 

Judgment  of  appellate  courts.    §238. 
Release  of,  on  taking  appeal.     §238   (B). 

LOCAL  LAWS  PROHIBITED.    §1  (C). 

LUNACY. 

Proceedings  to  determine  question  and  for  maintenance.    §76. 

MANDAMUS. 

Appeal  from  lower  court  allowed.     §77. 

Certifying  to  other  district.     §38  (B). 

Damages  and  costs;  disposition  of.    §38  (C). 

Hearing.     §38  (C). 

Petition  for ;  form.    App.  §25. 

Supersedeas;  special  allocatur  necessary.     §179. 

Supreme  Court;  appellate  jurisdiction.  §§104,  n.    (1)    (a),   (b) ; 

110,  n.  (5). 
Supreme  Court;  original  jurisdiction.    §38  (A)  and  n.  (1). 

MECHANICS'  LIENS. 

Appeal  allowed  in  proceedings.     §78. 

711 


Mod-Opin  INDEX. 


MODIFICATION  OF  JUDGMENT. 

Extent  of  power.    §§74;  228,  n.  (4),  (5);  n.  (24)   (z3). 

MUNICIPAL  LIENS. 

Appeal  allowed  in  proceedings.     §79. 

MUNICIPALITIES. 

Appeal  from  assessment  of  benefits  and  damages.      §§80;  96. 

MONEY  JUDGMENT. 

When  appeal  from  is  supersedeas.     §169. 

MURDER  CASES.     See  Criminal  Cases. 

Appeal  matter  of  right.    §46  (A),  (B),  (D),  (E)  and  n.  (9),  (10) 

Exceptions  allowed.    §46  (B),  (D). 

Return  day  of  appeal.    §218. 

Review  by  Supreme  Court.     §§46  (C)  and  n.  (10) ;  230. 

Rule  for  new  trial  in.    §226. 

NATURAL  GAS  COMPANIES.    See  Gas  Companies. 
Appeal  in  condemnation  proceedings.     §81   (A). 
Character  of  pipes  and  manner  of  laying.    §81  (B). 

NEW  TRIAL. 

Power  of  appellate  court  to  grant.    §228  and  n.  (8),  (9). 
Petition  for  nunc  pro  tune  in  murder  case.     §226. 
Form  of.    App.  §69. 

NON  OBSTANTE  VEREDICTO. 

Appeal  from  judgment.    §88  (C). 

NON  PROS. 

Argument;  absence  of  counsel  at.    §208. 

Argument;  failing  to  answer  daily  list.     §211. 

Assignments  of  error;  failure  to  file.    §183  and  n.  (5). 

Prosecution;  want  of.    §234. 

Record;  failure  to  return.     §144   (A). 

Rule  to  take  off.    §225,  n.  (2). 

Form  of  petition  for  rule.    App.  §66. 

NON  SUIT. 

Appeal  from  refusal  to  set  aside.    §82. 

Assignments  of  error;  failure  to  file.    §183,  n.  (5)   (c). 

Non-compliance  with  rules  of  court.     §205. 

NOTES  OF  TESTIMONY.     See  Evidence. 

NOTICE. 

Supersedeas;  application  for.    §180. 
Written  notice  required  in  all  cases.     §227. 

OFFICERS.     See  Supreme  Court;  Superior  Court. 

OPINION  OF  COURT.    See  Charge  of  Court ;  Paper-Book. 

Certifying  copy  of  opinion  of  appellate  court  to  lower  court. 

§244. 
Duty  of  Supreme  Court  to  file  opinion.    §9,  n.  (6). 

712 


INDEX.  Opin-Paper-Books 


,  Exceptions  to  opinion  necessary.  §§147,  n.  (4);  148,  n.  (2). 
Reasons  for  opinion.     §147,  n.   (3). 
Writing  and  filing  on  request  of  parties.     §147. 

ORPHANS'   COURT. 

Appeal  from  allowed.     §45. 

Appeal  from  refusal  of  feigned  issue.    §|6#  (C) ;  83. 
Appeal  from,  to  Supreme  Court.    §105.  r 
Appeal  from,  to  Superior  Court.     §111.       .^ 
Final  decree  necessary.     §45  and  n.   (2).  *^ 
What  decrees  are  final.    §45,  n.  (2). 
What  decrees  are  interlocutory.     §45,  n.  (3). 
Paper-books  in  appeal  from.    §193.    Form.    Ap.  pp.  537-8. 
Testimony;  notes  of,  to  be  taken.     §152. 
Review  of  appeals  from;  scope  of.    §229. 

OYER  AND  TERMINER. 

Appeal  from,  generally.     §46. 

Appeal  from,  to  Supreme  Court.     §103. 

Appeal  from,  to  Superior  Court.     §109. 

Appeal  a  matter  of  right.     §46. 

Testimony;  notes  of,  to  be  taken  on  request.     §153. 

PAPER-BOOKS.     For  Forms,  see  "Table  of  Contents — Appendix" 

at  beginning  of  Vol.    Ap.  §58  (A)-(K). 
Cases;  only  one  permitted  in  paper-book.     §205,  n.   (2). 
Citation  of  authorities.    §200. 
Contents. 

Abstract  of  proceedings. 

Criminal  cases.     §194. 

Equity  cases.     §193. 

Orphans'  court  cases.    §193. 

Verdict;  judgment  on.    §190. 

Verdict  on  case  stated;  judgment  not  founded  on.    §192. 

Cases  not  specifically  provided  for.  §191. 
Agreement  of  facts. 

Case  stated;  judgment  on.    §191. 
Appellee's  book.    §202;  Ap.  §58  (K) ;  p.  540. 
Appendix.    For  forms,  see  Ap.  pp.  528-33. 

Criminal  cases.     §194. 

Equity  cases,     §193. 

Orphans'  court  cases.    §193. 

Verdict;  judgment  on.     §190  and  n.  (11). 

Verdict  on  case  stated;  judgment  not  founded  on.    §192. 

Cases  not  specifically  provided  for.     §191. 
Argument.    For  forms,  see  Ap.  pp.  525-7. 

Appellee's  paper-book.    §202;  Ap.  pp.  540-1. 

Authorities;  citation  of.       §200. 

Case  stated ;  judgment  on.    §191. 

Criminal  cases.     §194. 

713 


Paper-Books  INDEX. 


Equity  cases.     §193.  . 

General  contents,   §199. 

Orphans'  court  cases.     §193. 

Page  of  paper-book;  reference  to.    §199. 

Verdict;  judgment  on.     §190. 

Verdict  or  case  stated;  judgment  not  founded.    §192. 
Assignments  of  error. 

Case  stated.    §191. 

Criminal   cases.     §194. 

Equity  cases.    §193. 

General  form  and  requirements.    §198;  Ap.  pp.  519-25. 

Orphans'  court  cases.     §193. 

Superior  Court;  appeal  from.     §201. 

Verdict;  judgment  on.     §190. 

Verdict  or  case  stated;  judgment  not  founded  on.    §192. 
Certificate  of  amount  in  controversy. 

Printing.     §195.    Form.     Ap.  p.  512. 

Verdict;  judgment  on.    §190. 

Verdict  or  case  stated;  judgment  not  founded  on.    §192. 
Charge  of  court.    For  forms,  see  Ap.  pp.  515-17. 

Verdict;  judgment  on.     §190  and  n.  (8). 
Docket  entries. 

Verdict;  judgment  on.    §190  and  n.  (3). 

Verdict  or  case  stated;  judgment  not  founded  on.    §192. 

Cases  not  specifically  provided  for.     §191. 
Evidence. 

Admission  or  rejection;  assignment  of,  for  error.     §198 
and  n.  (1). 

Documentary  evidence.     §§192;  193. 

Equity  cases.    §193  and  n.  (3). 

Orphans'  court  cases.    §193. 

Verdict;  judgment  on.    §190  and  n.  (12),  (13). 

Verdict;  judgment  not  founded  on,  or  on  case  stated. 
§192. 

Cases  not  specifically  provided  for.     §191. 
Exceptions  taken. 

In  criminal  cases.     §194. 

In  equity  cases.     §193. 
Findings  of  fact  and  law. 

Equity  cases.    §193. 

Orphans'  court  cases.     §193. 

Verdict  or  case  stated;  judgment  not  founded  on.    §192. 
Form  of  action. 

Verdict;  judgment  on.    §190. 

Verdict  or  case  stated;  judgment  not  founded  on.    §192. 

Cases  not  specifically  provided  for.     §191. 
History  of  case. 

Appellee's    paper-book.      §202. 

Equity  cases.    §193. 

General  form  and  contents.     §197. 

714 


INDEX.  Paper-Books 


Orphans'  court  cases.    §193. 

Verdict ;  judgment  on.     §190. 

Verdict  or  case  stated;  judgment  not  founded  on.    §192. 

Cases  not  specifically  provided  for.     §191. 
Issue. 

Verdict;  judgment  on.    §190. 

Verdict  or  case  stated;  judgment  not  founded  on.    §192. 

Cases  not  specifically  provided  for.     §191. 
Judgment  or  decree. 

Equity  cases.    §193. 

Orphans'  court  cases.    §193. 

Verdict;  judgment  on.    §190  and  n.  (5). 

Verdict  or  case  stated;  judgment  not  founded  on.    §192. 

Cases  not  specifically  provided  for.     §191. 
Names  of  parties.    For  forms,  see  Ap.  p.  511. 

Equity  cases.    §193. 

Orphans'  court  cases.    §193. 

Verdict;  judgment  on.    §190  and  n.  (1). 

Verdict  or  case  stated;  judgment  not  founded  on.    §192. 

Cases  not  specifically  provided  for.     §191. 
Opinion  of  court. 

Case  stated.     §191. 

Criminal  cases.     §194. 

Equity  cases.    §193. 

Printing  in  paper-book.     §§190  and  n.   (15);  191;  192; 
193;  194;  201. 

Orphans'  court  cases.    §193. 

Superior  Court;  appeal  from.    §201. 

Verdict;  judgment  on.    §190  and  n.  (15). 

Verdict  or  case  stated;  judgment  not  founded  on.    §192. 
Plans  and  drawings.     §§192;  193. 
Pleadings. 

Equity  cases.    §193. 

Orphans'  court  cases.    §193. 

Verdict;  judgment  on.    §190  and  n.  (14). 

Cases  not  specifically  provided  for.     §191. 
Points  submitted. 

Verdict;  judgment  on.    §190. 

Verdict  or  case  stated ;  judgment  not  founded  on.    §192. 

Cases  not  specifically  provided  for.     §191. 
Keport  of  referee,  auditor,  etc. 

Equity  cases.     §193  and  n.   (1). 

Orphans'  court  cases.    §193. 

Verdict  or  case  stated;  judgment  not  founded  on.    §192 

and  n.  (3). 
Statement  of  question  involved.  For  forms,  see  Ap.  pp.  513-15. 

Appellee's  paper-book.  §202. 

Case  stated.     §191. 

Criminal  cases.     §194. 

Equity  cases.    §193. 

715 


Paper-Books-Parties  INDEX. 


General  form  and  requirements  of  statement.    §196. 

Orphans'  court  cases.    §193. 

Superior  Court.    §201. 

Verdict;  judgment  on.     §190. 

Verdict  or  case  stated;  judgment  not  founded  on.    §192. 

Cases  not  specifically  provided  for.     §191. 
Verdict. 

Judgment  on.     §190  and  n.  (4). 

Judgment  not  founded  on  verdict  or  case  stated.     §192. 

Cases  not  specifically  provided  for.     §191. 
Cover.    §189. 
Drawings.     §189. 
Form.    App.  §58. 

Index.    §§189 ;  202.    Form.    Ap.  pp.  508-10. 
Margin.    §189. 

Number  of  cases  in  single  paper-book.    §205,  n.  (2). 
Number  of  copies  required.    §203. 

Pages;  reference  to,  where  matter  may  be  found.     §§198;  199. 
Paging  and  top  marginal  notes.  §189;  Ap.  p.  505. 
Plans  and  drawings;  size  of.     §189. 

Printing  evidence;  agreement  as  to  omission  of  testimony.    §156. 
Printing  as  costs  in  case.  §§156;  240. 
Service  of  copies.     §§203;  204. 
Size  and  cover.     §189. 
Suppression  of,  for  non-compliance  with  rules.    §205. 

PAKTIES  TO  APPEAL. 

Adverse  party;  prior  appeal  by.    §47. 

Appeal  by  both  parties  allowed.    §47. 

Death  of  party.    §§43,  n.  (10) ;  131. 

Joint  appeals.    §§43,  n.  (7) ;  54  (A)  and  n.  (4)   (a) ;  56  (A)  and 

n.  (3) ;  66,  n.  (4) ;  75;  114;  118  (B). 
Joint  and  several  appeals.    §43,  n.  (7). 
Names  of  parties  in  paper-books.     §§190  and  n.  (1);  191;  192; 

193;  Ap.  pp.  511-12. 
Names  of  parties  in  praecipe.    §131. 
Persons  aggrieved  by  judgment  or  decree.    §§43  and  n.  (7)-(10) ; 

45. 

Substitution  of;  form.    App.  §57. 
Who  are  proper  parties. 

Abutting  owners.    §§43,  n.  (5)  (a) ;  80,  n.  (7). 

Assignees.    §43,  n.  (5)   (b)-(d). 

Attaching  creditor.    §43,  n.  (5)   (f). 

Candidate  for  office.    §63  (C). 

City.    §43,  n.  (5)  (e). 

Claimant  of  fund.    §43,  n.  (5)  (f),  (g). 

Commonwealth.    §§46  (D)  and  n.  (12) ;  57,  n.  (1) ;  64. 

Defendant  in  attachment  execution.     §43,  n.  (5)   (h). 

Defendant  in  criminal  cases.     §46. 

Executor  or  administrator.    §§43,  n.  (5)  (i)-(k) ;  n.  (10) ;  235. 

Husband.     §43,  n.  (5)    (1). 

716 


INDEX.  Parties 


Joint  and  separate  parties.    §§43,  n.  (7) ;  54. 
Landlord.     §43,  n.  (5)   (m). 
Libellant.     §§43,  n.  (5)    (n) ;  61,  n.  (1). 
Lien  creditors.     §§43,  n.   (5)    (o)-(r) ;  66,  n.   (4)    (a). 
Next  of  kin.    §43,  n.  (5)   (s). 
Officer.     §43,  n.  (5)    (t). 

Personal  representatives.    §§43,  n.  (5)  (i)-(k) ;  n.  (10)  j  235. 
Private  citizens;  mandamus.   §77,  n.  (1)   (a). 
Remonstrant  against  liquor  license.    §43,  n.  (5)  (v). 
Sheriff.    §43,  n.  (5)   (w). 
Stockholder.    §43,  n.  (5)   (x). 
Sureties.    §43,  n.  (5)   (y). 
Taxpayers.    §54. 

Terre  tenant.    §43,  n.  (5)   (z),  (a2). 
Township;  mandamus.    §77,  n.  (1)  (c). 
Who  are  not  proper  parties. 

Abutting  owners,  when  no  property  taken.    §80,  n.  (7). 

Administrator.    §43,  n.  (6)   (a)-(c). 

Assignee.    §43,  n.  (6)   (d)-(f). 

Attorney.    §43,  n.  (6)   (g),  (h). 

Bank.    §43,  n.  (6)   (i). 

Borough.    §43,  n.  (6)   (j). 

Candidate  for  office.      §43,  n.  (6)  (j). 

Claimants  of  fund.    §43,  n.  (6)   (k). 

Commonwealth.    §43,  n.  (12). 

Contestants  of  will.    §43,  n.  (6)  (m). 

Co-partners.    §43,  n.  (6)   (n). 

County.    §§43,  n.  (6)   (o),  (p) ;  77,  n.  (1)  (b). 

Creditor.     §43,  n.   (6)    (q)-(s). 

Debtor.    §43,  n.  (6)   (t),  (u). 

Defendant,  one  of  several,  in  certain  cases.    §§43,  n.  (6)  (v), 

(w);n.  (7). 

Exceptant  who  filed  exceptions  too  late.    §43,  n.  (6)   (x). 
Executor.    §43,  n.  (6)   (y),  (z). 
Heir  of  insolvent  estate.    §43,  n.  (6)   (z). 
Husband.    §43,  n.  (6)  (a2). 
Insolvent.    §43,  n.  (6)   (b2). 
Intervening  party.     §43,  n.   (6)    )e2). 
Joint  and  separate  parties.    §43,  n.  (7). 
Judgment  creditors.     §43,  n.  (6)    (c2). 
Lien  creditors.    §§43,  n.  (6)  (d2) ;  66,  n.  (3)  (b). 
Minority  members  of  beneficial  society.    §89,  n.  (1). 
Party  intervening.     §43,  n.  (6)   (e2). 
Party  permitted  to  withdraw.    §43,  n.  (6)   (f2). 
Party  whose  name  is  not  on  record.    §43,  n.  (6)  (g2). 
Private  citizen;  mandamus.    §77,  n.  (1)  (a). 
Prosecutor.    §§43,  n.  (6)   (h2) ;  92,  n.  (2). 
Receiver.     §43,  n.  (6)   (i2). 
Residuary  legatees.    §43,  n.  (6)  (j2). 
Sureties.    §43,  n.  (6)    (h2),  (12). 

717 


Part-Praec  INDEX. 


Taxpayers.     §43,  n.  (6)   (m2). 
Trustee.     §§43,  n.  (6)   (n2) ;  99. 

PARTITION. 

Writ  of  error  from  judgment  in.    §84. 

PASSING  CASE  ON  LIST. 
When   allowed.     §221. 

PAUPERS. 

Order  of  removal ;  issue  on  appeal  from.    §85. 

PENALTY. 

Delay;  taking  appeal  for.     §242. 

Petition  for;  form.    App.  §63. 

Eule  for;  form.    App.  §64. 
Non-compliance  with  rules.     §205. 

PERFECTING  APPEAL. 

Filing  in  lower  court  necessary.     §140  and  n.  (3). 
Time  of,  to  operate  as  supersedeas.     §167. 
Computing  time.     §128,  n.   (1). 

PERSONALTY. 

Decree  directing  delivery  of;  appeal;  supersedeas.     §170. 

Proceedings  where  property  is  perishable.     §171. 
PETITION.     For  forms  of  various  petitions,  see  Forms. 

Appeal  from  Superior  Court.     §121,  n.  (2). 
Cost  of  filing.    §137. 

New  trial  nunc  pro  tune  in  murder  cases.     §226. 

Special  allocatur.     See  Special  Allocatur. 
PIPE  LINE  COMPANIES. 

Appeal  in  land  damage  cases.     §86  (A). 

Appeal  in  quo  warranto  proceedings.    §86  (B). 

PLANK  ROADS. 

Appeal  in  proceedings  relating  to.     §87. 

PLANS  AND  DRAWINGS. 

Printing  in  paper-book.     §§156;  192;  193. 

PLEADINGS. 

Irregularities  in;  review.     §228,  n.  (13),  (27). 

Printing  in  paper-book.     §§190  and  n.  (14);  191;  193. 
POINTS  AND  ANSWERS. 

Exceptions  to ;  time  and  manner  of  taking.    §162. 

Filing  as  part  of  record.     §§148;  149. 

Quoting  in  assignments  of  error.    §186  and  n.  (1). 

Must  be  assigned  for  error  singly.     §185  and  n.  (3). 

Printing  paper-book.    §§190;  191;  192;  Ap.  pp.  517-18. 
POINTS  RESERVED. 

Appeal  from  judgment  on.     §88. 
PRAECIPE. 

Admission  of  attorneys.    App.  §§12-15. 

Certiorari  for  appeal.    App.  §§35-36. 

Requirements  of,  for  appeal.     §131. 

7l8 


INDEX.  Prem-Quest 


PREMATURE  APPEALS.    §126,  n.  (6). 

PRESUMPTION. 

Regularity  of  proceedings.     §228,  n.   (17). 

PRINTING. 

Costs  in  case.    §§156;  240. 

Evidence;  agreement  as  to  omission.  §156. 

PROCEDENDO. 

When  granted.     §228,  n.  (7). 

PROTHONOTARY. 

Supreme  Court. 

Appointment.    §8  (A). 

Compensation.     §8,  n.  (3). 

Duties.     §8  (A). 

Fees.     §§134  (A);  137;  142. 

Power  to  appoint  deputy  and  clerk.    §8,  n.  (2). 
Superior  Court.    §§134  (A) ;  142. 
Lower  court.     §134  (B),   (C). 
Philadelphia  county.     §134   (C). 

PUBLIC  OFFICES,  right  to. 

Appeal  from  proceedings  lies  to  Supreme  Court.    §§102;  108  and 
n.   (3). 

QUASHING  APPEAL. 

Motion.    Form.    App.  §65. 

Motion  by  court.     §233,  n.  (2). 
Time  for  making.     §233,  n.   (1). 
What  will  be  considered.     §233,  n.   (3). 
Grounds  for  quashing. 

Argument;  failure  to  appear  at.    §224. 

Assignments  of  error;  failure  to  file.    §§183  and  n.  (5)   (b) ; 

184,  n.   (1)    (a). 
Certificate  of  amount  in  controversy;  failure  to  file.     §117 

(B)   and  n.  (1). 

Defects  or  irregularities  in  proceedings.  §§155,  n.   (1) ;  233. 
Delay  in  taking  appeal.     §126,  n.  (1). 
Record,  failure  to  file  on  return  day.    §144. 

QUARTER  SESSIONS. 

Appeal  from;  generally.     §§43;  46  (A)  and  (D). 

Appeal  from,  to  Supreme  Court.     §102. 

Appeal  from,  to  Superior  Court.     §108. 

Paper-books  in  appeals  from.     §194. 

Special  allowance  of  appeal  unnecessary.    §46,  n.  (11). 

Testimony;  notes  of,  to  be  taken  on  request.    §153. 

QUESTION,  CONSTITUTION.    Page  iv;  §121;  Ap.  §27. 

QUESTION  NOT  RAISED  BELOW. 
Review  on  appeal.     §228,  n.    (15). 

719 


Quest-Record  INDEX. 


QUESTION  OF  LAW. 

Must  be  assigned  for  error  singly.    §185. 

QUESTIONS  INVOLVED. 

Printing  in  paper-book.    §§190;  191;  192;  193;  194;  202. 
Eequirements  and  form.    §196;  Ap.  pp.  513-15. 

QUO  WAKRANTO. 

Appellate  jurisdiction  of  Supreme  Court.    §§S6  (B) ;  89;  95;  104, 

n.  (1)   (b). 

Original  jurisdiction  of  Supreme  Court.    §39. 
Petition  for;  form.    App.  §23. 

Affidavit  accompanying.    App.  §24. 
Supersedeas;  special  allocatur  necessary.     §179. 

QUORUM. 

Supreme  Court  judges.    §2  (C)  and  n.  (2). 
Superior  Court  judges.     §12  (D). 

RAILROADS. 

Appeal  in  land  damage  cases.     §90. 

REAL  ESTATE. 

Appeal  in  proceedings  to  sell  or  quiet  title.    §91. 
Judgment  involving  title  to;  appeal;  supersedeas.     §174. 

REARGUMENT. 

Motion  or  petition  for;  practice.     §225.   * 

Form.    App.  §67.   ^ 

Order  and  rule.    App.  §68. 
When  allowed.    §225,  n.  (1). 

RECOGNIZANCE.     See  also  Bail. 
Appeal  from  forfeiture  of.     §92. 

RECORD. 

Certiorari  to  remove  to  appellate  court.    §140;  Ap.  §§41-48. 
Certiorari  for  failure  to  return  whole  record.     §§141;  146. 
Custody  of.     §140,  n.  (2). 
Diminution  of.    §141,  n.  (1) ;  Ap.  §§49;  50;  51. 
Forwarding  to  appellate  court.    §§141 ;  143 ;  144 ;  146. 
Filing  in  appellate  court;  effect  of  failure.    §144. 
Remitting  to  lower  court.    Forms.    Ap.  §§70 ;  71. 

After  final  decision.    §244. 

For  further  proceedings.     §228,  n.  (6). 

For  purpose  of  entering  judgment  below.     §88,  n.  (4). 

On  appeal  from  Superior  Court.    §123. 

On  appeal  from  orphans'  court.     §229. 
What  it  includes. 

Charge  and  opinion  of  court.    §§147;  148. 

Evidence  excepted  to  and  made  part  thereof.     §§46.  n.  1; 
161. 

Evidence  excepted  to  in  criminal  cases.    §151. 

Findings  of  fact  and  law;  equity  cases.    §150. 

720 


INDEX.  Record-Ret 


Generally.     §146,  n.  (1). 

Notes  of  testimony.    §§152-160. 

Points  for  charge  and  answers  thereto.     §§148;  149. 
What  it  does  not  include. 

Generally.     §146,  n.   (2). 
REFEREE. 

Report  of;  printing  in  paper-book.     §§190  and  n.   (3) ;  193  and 

n.  1. 
REFERENCE. 

Appeal  in  proceedings  under  Act  1874.    §93. 

REHEARING.     See  Reargument. 
REMANDING  CAUSE.     See  Remittitur. 

REMARKS  OF  COUNSEL. 

Review  of.    §§146,  n.  (2)  (d) ;  228,  n.  16;  29  (i)  and  (k) ;  Ap.  p. 

521. 
REMEDY  AT  LAW. 

Costs  where  case  is  transferred  to  law  side  of  court.    §228  (C). 

Review  on  appeal.     §228  (C). 

REMITTITUR. 

After  final  decision.     §244. 

Form.    App.  §§70;  71. 
Orphans'  court  cases.     §229. 
For  further  proceedings.     §228,  n.  (6). 
For  purpose  of  entering  judgment  below.    §88,  n.  (4). 
Duty  of  prothonotary  to  certify  with  record  copy  of  opinion  of 

appellate  court.   §244. 
Orphans'  court  cases.     §229. 
Superior  Court;  appeal  from.     §123. 

REMOVAL  ORDERS. 

Review  on  appeal.    §85. 

REPORT  OF  REFEREE,  AUDITOR  OR  MASTER. 

Printing  in  paper-book.    §§192  and  n.  (3) ;  193  and  n.  (1). 

REPORTER.    See  Supreme  Court;  Superior  Court. 
REPORTS.    See  Supreme  Court;  Superior  Court. 

REQUEST  FOR  CHARGE.    See  also  Points  and  Answers. 

Answers  to.     §228,  n.  (22). 

Failure  to  make.    §228,  n.  (19). 
RESTITUTION. 

When  granted.     §243. 

RETURN. 

Criminal  cases  to  other  district.     §46,  n.  (5). 

RETURN  DAYS. 
Superior  Court. 

General  and  special  return  days.    Anp.  §§16 ;  22. 
Special  return  days  in  criminal  cases.     §§145  (B) ;  219. 

721 
46 


Ret-Rev  INDEX. 


Supreme  Court. 

General  reurn  days.    §7;  App.  §20-21. 

Special  return  days  in  criminal  cases.    §§145  (A) ;  218. 

REVERSAL  OF  JUDGMENT  ON  APPEAL. 
General  power  of  court.    §228  and  n.  (2). 

REVIEW  ON  APPEAL. 
Form  of  writ.     §130. 

Modes  of,  still  in  force.    §§42,  n.  (3) ;  48  (C) ;  182. 
Under  "writ  of  error."    §§48;  182  and  n.  (1),  (2). 
Under  "appeal."    §§48;  182  and  n.  (3). 

Under  "  certiorari. "  §§48;  182  and  n.  (4).    See  also  Certiorari. 
In  statutory  proceedings. 

General  rule.     §48  (A). 

Exception  in  land  damage  cases.    §48  (A)  and  n.  (5). 

When  appeal  is  proper  remedy.    §48  (A),  (C)  and  n.  (1). 

When  certiorari  is  proper  remedy.    §§48  (B)  and  n.  (2) ;  182, 
n.  (4). 

When  writ  of  error  is  proper  remedy.  §§48  (A),  (C)  and  n. 

(1),  O). 
Powers  of  court  on  appeal. 

Affirmance  of  judgment.     §228  and  n.  (1). 
Modification  of  judgment.     §228  and  n.  (4),  (5). 
New  venire;  awarding.    §228  and  n.  (8),  (9). 
Procedendo;  awarding.    §228  and  n.  (7). 
Remitting  cause  for  further  proceedings.     §228  and  n.   (6). 
Reversal  of  judgment.    §228  and  n.  (2),  (3). 
General  scope  of  review. 

Capital  cases;  reviewing  law  and  evidence.    §§46  (C)  and  n. 

(10) ;  230. 
Charge  of  court. 

Binding  instructions.    §228,  n.  (23). 

Comments  on  evidence.     §228,  n.   (21). 

Omission  to  charge  in  particular  manner.    §228,  n.  (19). 

Prejudicial,   misleading   or   mistaken   charge.      §228,   n. 
(20). 

Requests  for  instructions;  answers.     §228,  n.   (22). 
Clerical  errors.    §228,  n.  (12),  (28). 
Discretion  of  lower  court.     §§53,  n.  (2) ;  61,  n.  (2)   (d) ;  66, 

n.  (1) ;  71,  n.  (1) ;  74,  n.  (1)  (s) ;  82,  n.  (1) ;  228,  n.  (24). 
Equity  cases;  questions  of  jurisdiction.     §44  (B). 
Estoppel.     §228,  n.   (31). 
Evidence. 

Capital  cases.     §230. 

Comments  on,  by  appellate  court.    §228,  n.  (21). 

Divorce  cases.     §61,  n.  (2). 

To  what  extent  reviewable.     §228,  n.  18. 
Exceptions  taken  below.     §228,  n.   (10),   (11). 
Excessive  or  inadequate  verdict.     §228,  n.  (9). 
Feigned  issue;  judgment  on.     §67,  n.  (1). 

722 


INDEX.  Rev-Serv 


Findings;  to  what  extent  reviewable.     §228,  n.  (18). 
Harmless  error. 

Admission  of  evidence.     §228,  n.  (25). 

Clerical  errors.  §228,  n.   (28). 

Exclusion  of  evidence.    §228,  n.  (26). 

Irregularities  in  pleadings.  §228,  n.  (27). 

Matters  happening  on  trial.    §228,  n.  (29). 
Injunctions;   preliminary;   decree  on   application  for.     §71, 

n.  (1). 

Judgment  n.o.v.  on  point  reserved.    §88  (C)  and  n.  (3). 
Judgment  on  whole  record  where  jury  have  disagreed.     §88 

(D). 

Labor  claims.     §75. 
Mandamus.    §77  and  n.  (6). 
Orphans'  court  cases;  review  of  merits.     §229. 
Presumption  of  regularity.     §228,  n.   (17). 
Questions  not  raised  below.    §228,  n.  (15). 
Kemarks  of  counsel.    §228,  n.(16) ;  29  (i)  and  (k) ;  Ap.  p.  521. 
Removal  orders.     §85,  n.   (1). 
Road  cases.     §231. 
Superior  Court  decisions.     §123. 

Technical  defects  and  irregularities.     §228,  n.  (13),   (27). 
Theory  of  case.     §228,  n.  (14). 
Viewers;  report  of;  exceptions.     §100,  n.  (2). 
Waiver.    §228,  n.  (30). 

ROAD  CASES. 

Review  on  appeal.     §231. 

RULES  OF  COURT.    See  under  proper  headings ;  also  Ap.  pp.  550-82. 
Penalty  for  non-compliance  with.    §205. 
Supreme  Court  rules  to  be  binding  in  Superior  Court.     §§19; 

213,  n.  (1). 
Superior  Court;  right  to  make  additional  rules.     §19. 

SALARY.     See  Compensation. 

SEAL. 

Supreme  Court.     §11  (G). 
Superior  Court.    §19. 

SECOND  APPEAL. 

Right  to  take.     §§43,  n.  (8);  50  (B). 

SECURITY  FOR  COSTS ;  appeal  without  entry  of.    §168. 

SENTENCE. 

Necessary  before  appeal.    §46,  n.  (1). 

Not  suspended  by  appeal  perfected  after  three  weeks.    §167  and 

n.  (1)   (f),  (g). 
SEPARATE  APPEALS.    §43,  n.  (7). 

SERVICE. 

Paper-books.     §§203;   204. 

723 


Short-Super.  Ct.  INDEX. 


SHORT  LIST.    See  Argument. 

SPECIAL  ALLOCATUR. 
For  appeal. 

When  required. 

Appeal  from  Superior  to  Supreme  Court.     §121  and  n. 
(2),  (3);  §124;  Ap.  §27. 

Criminal  cases;  not  required.  §46. 
Petition  for. 

Contents.    §135. 

Costs  of,  on  appeal  from  Superior  Court.    §137. 

Filing;  time.  §136. 

Form.    App.  §27. 

Procedure  after  allowance;  perfecting  appeal.     §138. 
For  supersedeas  or  other  interlocutory  order. 
When  required. 

Criminal  cases.    §179. 

Election  contests.     §179. 

Mandamus.     §179. 

Quo  warranto.    §179. 
Petition  for. 

Contents.     §§180;  181. 

Filing;  time.     §§180;  181. 

Form.  App.  §30. 

Notice  to  opposing  counsel.     §180. 

Procedure  after  allowance.     §180. 

SPECIFICATIONS  OF  ERROR.    See  Assignments  of  Error. 

STATE  BOARD  OF  EXAMINERS.    See  Attorneys. 
Creation;  term  of  office,  duties,  etc.     §20. 

STATE  TAX  ON  PROCESS.    §139. 

STATEMENT  OF  QUESTION  INVOLVED. 

Printing  in  paper-books.    §§190;  191;  192;  193;  194;  202. 
Requirements  and  form.    §196;  Ap.  pp.  513-15. 

STAY  OF  PROCEEDINGS. 

Pending  decision  of  same  question  by  Supreme  Court.    §119. 

STENOGRAPHER.    See  Evidence  (Stenographic  Notes). 
STREET  RAILWAYS.    Page  iv,  Addenda. 

SUPERIpR  COURT. 

Admission  of  attorneys.     See  Attorneys. 
Appeals  from,  to  Supreme  Court. 

Appeal  lies  when.    §§121;  124;  page  iv. 

Argument  of  appeals;  position  on  list.     §206  (B). 

Assignments  of  error.     §188. 

Bail.     §165. 

Certifying  case  to  Supreme  Court  by  Superior  Court.    §§115; 

124. 
Form  of  petition.     App.  §29. 

724 


INDEX.  Super.  Ct. 


Cross  appeals.     §123,  n.   (1). 

Paper-book.    §201;  Ap.  §58  (H). 

Practice;  remitting  record.     §123. 

Keview  on  appeal  from.     §123. 

Special  allowance;  when  necessary.    §121  and  n.  (2),  (3). 

Form  of  petition.    App.  §27. 
Time  for  appeal.     §128. 
Waiver  of  appeal.     §122. 

Appeal  erroneously  taken;  certifying  to  Supreme  Court.     §120. 
Argument   of  cases.     See  Argument. 
Consolidation  of  appeals.     §118. 
Creation  of.     §12  (A). 
Decisions  of  Supreme  Court  binding.    §125. 
Districts.     §16;  App.  §22. 
General  powers.     See  Review  on  Appeal. 

Affirmance,  reversal  or  modification  of  judgment  of  lower 

court.     §228. 

Execution  for  costs,  etc.    §§11  (C) ;  42  (D). 
Issuing  writs,  awarding  process,  etc.    §19. 
Rules  of  practice;  power  to  make.    §19. 
Terms  and  return  days;  power  to  fix.     §16. 
Judges. 

Compensation. 

Allowance  for  clerk  hire.    §15  (B). 
Salary.    §15  (A). 
When  paid.    §15,  n.  (1). 
Election  of. 

Limited  vote.    §12  (B)  and  n.  (1). 
Qualification  of  electors.    §12  (A). 
Time  of  election.     §12  (A). 
Vacancies  filled  by  governor.    §14. 
Number  of.     §12  (A). 

President  judge;  how  priority  determined.     §13. 
Qualifications.     §12    (A). 
Quorum.    §12  (D). 
Term  of  appointee  to  vacancy.     §14. 
Term  of  office.    §12  (C). 
Jurisdiction. 
Appellate. 

Agreement  of  parties.     §§112;  122. 
Amount  in  controversy;  how  determined.    §117. 
Civil  and  criminal  cases.     §43. 

Common    pleas;    claims    not    exceeding   $1500;    actions 
brought  or  defended  by  Attorney  General  excepted. 

§110. 

Constitutional  provision  and  general  powers.  §42. 
Criminal  cases,  §46. 
Divorce.     §113. 

Equity  orders  and  decrees.     §44. 
Exclusive  where  given.     §116. 

725 


Super.  Ct.-Sup  INDEX. 


Generally.     See  Appeals;  when  allowed. 
Labor  claims.     §114. 

Mandamus  cases.     §§77,  n.  (3);  110,  n.  (5). 
Objection  to;  waiver.  §§115;  120,  n.  (2). 

Form.    App.  §28. 
Orphans'  court  decrees.     §45. 

Orphans'  court;  claims  not  exceeding  $1500;  actions 
brought  or  defended  by  Attorney  General  excepted. 
§111. 

Oyer  and  terminer;  exclusive  except  murder  cases.  §109. 
Quarter  sessions;  exclusive  except  when  right  to  public 

office  is  at  issue.  §108. 

Special  statutes;  appeals  under.  See  Appeals;  when  al- 
lowed. 
Original. 

Habeas  corpus.     §§41;  110,  n.  (3). 
Territorial. 

Co-extensive  with  state.     §40. 
Officers. 

Criers.     §17   (B). 
Prothonotary.     §17    (A). 
Tipstaves.     §17  (B). 
Reporter.     Assistant  and  salary.     §18. 
Reports.  §18,  n.  (1). 

Return  days.    §§16;  145  (B) ;  219;  App.  §22. 
Seal.    §19. 

Special  return  days  in  criminal  cases.    §§145  (B) ;  219. 
Stay  of  proceedings  pending  decision  in  Supreme  Court.     §119. 
Terms  and  return  days.    §§16;  145  (B) ;  219;  App.  §22. 

SUPERSEDEAS.     See  Special  Allocatur. 

Additional  bail;  when  necessary  to  effect.    §165.        S 

Bail  must  be  entered  within  three  weeks.     §167.  * 

Conveyance;  decree  directing  execution  of.    §172. 

Costs;  decree  for.     §176. 

Criminal  cases;  special  allocatur  necessary.     §179. 

Decree  of  distribution.    §178. 

Decree  within  more  than  one  class.     §177. 

Election  contest;  special  allocatur  necessary.     §179. 

Injunction;  decree  granting.     §173. 

Mandamus;  special  allocatur  necessary.     §179. 

Money  judgments.     §169. 

Perfecting  appeal  required  within  three  weeks.     §§128;  167. 

Personal  property;  judgment  directing  delivery  of.     §§170;  171. 

Quo  warranto;  special  allocatur  necessary.     §179. 

Realty;  judgment  involving  title  to.     §174. 

Security  required,  except  in  certain  cases.     §168. 

Special  allowance  of.     See  Special  Allocatur. 

Tax  assessment;  decree  affecting.     §94. 

Trustee;  decree  removing.     §175. 

726 


INDEX.  Sup-Supr.  Ct, 


SUPPLEMENTAL  AFFIDAVIT  OF  DEFENSE. 
Filing.    §50,  n.  (6). 

SUPPLEMENTARY  PROCEEDINGS. 

Appeal  from.     §§102,  n.  (1);  108,  n.  (1). 

SUPPRESSION  OF  PAPER-BOOK.     §205. 

SUPREME  COURT. 

Admission  of  attorneys.    See  Attorneys. 

Argument  of  appeals.     See  Argument. 

Certifying  to  proper  court ;  appeal  taken  to  wrong  court.    §§115 ; 

120. 

Creation  of.    §1,  n.  (1). 

Decision  of,  binding  on  Superior  Court.     §125. 
Districts.  §7  (A)  and  n.  (1);  App.  §§20;  21. 

Effect  of  dividing  state  into  districts.     §34,  n.  (1). 
General  powers.    See  Review  on  Appeal. 

Affirmance,  reversal  or  modification  of  judgment  of  lower 

courts.     §228. 

Appointment  of  prothonotary  and  other  officers.     §8. 
Judicial  power.     §§1;  11. 

New  writs;  power  to  devise.    §11  (B)  and  n.  (1). 
Process;  power  to  award  and  collect  fines,  costs,  etc.     §§11 

(C);  42  (D). 

Rules  of  practice;  power  to  establish.    §11  (D)  and  n.  (4). 
Seal.    §11  (G). 
Terms  and  return  days;  power  to  arrange.    §7  (B),  (C)  and 

(D). 

Witnesses;  power  to  subpoena.    §11  (E). 
Judges. 

Chief  justice. 

Duty  to  preside  over  election  contests  for  office  of  gover- 

nor.    §3  (C). 

Priority;  how  determined.    §3  (A),  (B). 
Compensation. 

Allowance  for  clerk  hire.    §6  (B). 
Salary.    §6  (A)  and  n.  (1),  (4). 
When  paid.    §6,  n.  (3). 
Increase  of.  §6,  n.  (2). 
On  retirement  for  disability.    §6,  n.  (4). 
Election. 

Commission;  by  whom  granted.    §2,  n.  (4). 
Commission;  priority  of.    §3  (A),  (B). 
Contested  elections.     §2,  n.   (6). 
Election  by  limited  vote.  §2  (B). 
Qualifications  of  electors.     §2  (A)  and  n.  (1). 
Time  of  holding  election.     §2  (A)  and  n.  (7). 
Vacancies  filled  by  governor.     §4. 
Number  of.    §2  (A). 
Opinions;  duty  to  file  in  writing.    §9,  n.  (6). 

727 


Supr.  Ct  INDEX. 


Qualifications.     §2,  n.   (1). 
Quorum.    §2  (C)  and  n.  (2). 
Residence  within  commonwealth.     §5. 
Term  of  office.     §2   (A)   and  n.   (3). 
Term  of  appointee  to  fill  vacancy.     §4. 
Jurisdiction. 
Appellate. 

Allegation  as  to  jurisdiction.     §117,  n.  (6). 
Amount  in  controversy;  how  determined.    §117. 
Certifying  to  proper  court;  appeal  taken  to  wrong  court. 

§§115;   120. 

Civil  and  criminal  cases.  §43. 
Common  pleas;  claims  exceeding  $1500;  suits  brought  or 

defended  by  Attorney  General;  distribution  proceed- 
ings.   §104. 

Consolidation  of  appeals;  practice.  §118. 
Constitutional  provision  and  general  powers.     §42   (A). 

To  correct  errors  of  inferior  courts.    §42  (B). 

To  issue  remedial  writs.     §42  (C). 
Criminal  cases. 

Generally.    §46  (A)  and  n.  (7). 

Appeal  in  all  cases.     §46  (D). 

Appeal  by  commonwealth.    §46  (D)  and  n.  (12). 

Murder  and  voluntary  manslaughter.    §46  (B),  (C), 

(E),  n.   (9),   (10). 

Damage  cases  by  husband  and  wife  jointly.     §106. 
Disbarment  proceedings.    §§53;  103,  n.  (1);  107. 
Mandamus  proceedings.    §104,  n.  (1)   (a),  (b). 
Equity  cases. 

Generally.     §44  (A). 

Injunctions.     §44  (B). 

Question  of  jurisdiction.    §44  (C). 
Orphans'  court  cases.    §45. 
Orphans '  court ;  claims  exceeding  $1500 ;  suits  brought  or 

defended  by  Attorney  General;  distribution  proceed- 
ings. §105. 

Oyer  and  terminer;  cases  of  felonious  homicide.    §103. 
Prior  appeal  by  adverse  party ;  appeal  not  precluded.  §47. 
Quarter  sessions;  cases  involving  right  to  public  office. 

§102. 

Quo  warranto  proceedings;  §§89,  n.  (3) ;  104,  n.  (1)  (b). 
Special  statutes.    See  Appeals;  when  allowed. 
Superior  Court;  appeals  from. 

Assignments  of  error.     §188. 

Certification  by  Superior  Court.  §124. 
Form  of  petition.  App.  §29. 

Constitutional  question.    Page  iv ;  §121 ;  Ap.  §27. 

Practice  on  appeal;  remitting  record.     §123. 

Review  of  judgment  of  Superior  Court.    §228  (A). 

Special  allowance;  when  necessary.     §§121  and  n. 

728 


INDEX.  Supr.  Ct. 


(2),  (3);  p.  iv.    Addenda  (Const.  Quest.);  Ap. 
§27. 

Waiver  of  appeal.    §122. 
When  allowed.     §121. 
Original. 

Appointment;  power  of.     §35  (B). 
Civil  cases.    §35  (A)  and  n.  (2). 
Criminal  cases.  §35  (A)  and  n.  (1). 
Generally.    §35. 
Habeas  corpus.  §§35  (A) ;  37. 

Injunctions;  where  corporation  is  defendant.     §§35 
(A);  36  (A). 

Certifying  to  other  district.     §36  (B). 
Mandamus;  to  courts  of  inferior  jurisdiction.     §§35 
(A);  38  (A)  andn.  (1). 
Certifying  to  other  district.    §38  (B). 
Hearing;   judgment;   damages   and   costs.     §38 

(C). 
Quo  warranto;  to  officers  of  commonwealth.     §§35 

(A) ;  39. 
Territorial. 

Co-extensive  with  state.     §34. 
Officers. 

Attorneys.    §8,  n.  (1). 
Criers.    §8  (B). 

Compensation.    §8  (B). 
Prothonotary.     §8   (A)   and  n.   (2),   (3). 
Deputy  prothonotary.     §8,  n.  (2). 
Clerk.    §8,  n.  (2). 
Compensation.    §8,  n.  (2),  (3). 
Tipstaves.    §8  (B). 

Compensation.     §8  (B). 
Reporter. 

Appointment  and  commission.    §9  (A). 
Bond.    §9,  n.  (1). 

Duties.    §9  (C),  (D)  and  n.  (3),  (4). 
Removal.    §9  (B)  and  n.  (7). 
Salary.    §9,  n.  (2). 
Reports. 

Copyright.    §10  (E)  and  n.  (3). 
Publication  of. 

How  published;  number  of  copies,  etc.    §10  (B). 
Advertising  for  bids.     §10   (C). 
Bond  of  contractor.     §10    (D). 
Style  of  printing,  etc.    §10  (A). 
Volumes;  numbering  of.    §10,  n.  (1). 
Return  days.    §7  (B),  (C),  (D)  and  n.  (2) ;  App.  §§20-21. 

Special  return  days  in  criminal  cases.    §§145  (A) ;  218;  219. 

729 


Sur-Waiver  INDEX. 


Terms.    §7  (B),  (C),  (D)  and  n.  (2);  App.  §§20-21. 
Writ;  form  of.    §7,  n.  (3). 

SURETIES.    See  Bail. 

Affidavit  of;  form.    App.  §53. 

Liability  of.     §§163,  n.   (3);  169,  n.   (2). 

Who  may  not  become.    §166. 

SURPRISE.    Withdrawing  juror.  See  Continuance. 

TAX. 

Not  allowed  on  appeals.     §139. 

TAX  ASSESSMENTS. 

Appeal  from  judgment  affecting.    §94. 

TAX-PAYERS;  appeal  by. 

Allowed  on  appeal  from  auditors'  accounts.    §54. 

Not  allowed  in  proceedings  to  collect  special  tax.  §43,  n.  (6)(m2). 

TECHNICAL  DEFECTS. 

Review  by  appellate  courts.    §228,  n.  (13),  (27). 

TELEGRAPH  COMPANIES. 

Appeal  in  quo  warranto  proceedings  to  forfeit  franchises.    §95. 

TERMS  OF  COURT.    See  Supreme  Court;  Superior  Court. 

THEORY  OF  CASE. 

Review  on  appeal.    §228,  n.  (14). 

TIPSTAVES. 

Appointment,  salary.    §8  (B). 

TOLL  BRIDGES. 

Appeal  in  proceedings  to  condemn.    §96. 

TOWNSHIPS. 

Appeal  from  eminent  domain  proceedings  by.    §97. 

TRANSCRIPT. 

Of  notes  of  testimony.    See  Evidence  (Stenographic  Notes). 
TRIAL  WITHOUT  JURY. 

Appeal  or  writ  of  error  from  judgment.     §98. 

TRUSTEE. 

Appeal  from  proceedings  against.     §99. 
Removal  of;  appeal;  when  supersedeas.    §175. 

TURNPIKES. 

Appeal;  writ  of  error  or  certiorari  in  proceedings  to  condemn. 
§100. 

VENIRE  FACIAS  DE  NOVO. 
When  granted.     §228,  n.  (8). 

VERDICT. 

Excessive  or  inadequate;  awarding  new  trial.    §228,  n.  (9). 
Stating  in  paper-book.     §§190  and  n.  (4) ;  191 ;  192. 

730 


INDEX.  Waiver-Writ  of  Er 


WAIVER. 

Appeal,  right  of.    §§43,  n.  (9);  51,  n.  (2). 

Appeal  from  Superior  Court.    §122. 

Objection  to  amendment.     §232,  n.  (3). 

Objection  to  jurisdiction.    §§115;  120,  n.  (2). 

Objections  to  irregularities,  etc.     §§132,  n.  (2)    (d) ;  161,  n.  (5) 

(m);  228,  n.  (30). 
Objections  to  omissions  in  bill  of  exceptions.    §161,  n.  (5)  (m). 

WATER  COMPANIES;  appeal  in  proceedings  against.  §69. 

WEAK  MINDED  PERSONS. 

Appeal  from  appointment  of  guardian  for.    §101. 

WEEKLY  LIST.    See  Argument. 

WRITS. 

Form  of.    §7,  n.  (3). 

WRIT  OF  ERROR.    See  also  Appeals. 
Defined.    §182,  n.  (2). 
Lies  when. 

Generally.     §182,  n.  (2). 

Common  law  proceedings  and  general  statutes. 
Criminal  cases.     §46. 
Judgments  at  law.     §§43;  48,  n.   (3). 
Land  damage  cases.    §48  (A). 
Lies  to  all  courts.    §42. 

Special  statutory  proceedings.     See  Appeals  (Statutory). 
Writ  allowed  only  where  expressly  given.     §48  (A)  and 

n.   (1). 

Affidavit  of  defense,  judgment  for  insufficient.    §50. 
Arbitration  proceedings.    §51. 

Armories ;  condemnation  of  highway  for  purpose  of  erect- 
ing.   §52. 
Attorneys;  actions  against  for  unprofessional  conduct. 

§53. 
Boroughs;  proceedings  to  assess  damages  for  property 

taken,  etc.    §56,  n.  (1). 
Common  schools,  proceedings  to  assess  damages.     §58, 

n.  (1). 
Corporations. 

Gas  and  water  companies. 

Insufficiency  of  supply.     §69. 
Laying  of  pipes.    §81  (A). 
Pipe  line  companies;  land  damages.     §86  (A). 
Plank  road  companies ;  proceedings  relating  to.    §87. 
Railroads;  land  damage  cases.     §90. 
Turnpike  companies;  land  damage  cases  and  pro- 
ceedings to  condemn.  §100. 
Counties;  condemnation  proceedings.    §60  (A),  (B)  and 

n.  (1). 
Escheat;  proceedings  to  declare.  §64  (A),  (C). 

731 


Writ  of  Error  INDEX. 


Estates  tail;  proceedings  to  bar.    §65. 

Execution  proceedings.    §66  (C),  (D). 

Feigned  issue.     §67. 

Foreign  attachment.     §68. 

Lunatics;  proceedings  to  try  sanity.  §76  (A)  and  n.  (2). 

Municipalities;  damages  and  benefits,  etc.  §80  (D),  (K) 

and  n.  (1). 

Non-suit;  refusal  to  set  aside.    §82. 
Partition.    §84. 

Paupers;  issue  on  appeal  from  removal  orders.    §85. 
Points  reserved;  entry  of  judgment.    §88  (A),  (B)  and  n. 

(2). 

Quo  warranto.    §89. 
Recognizance;  forfeited.    §92,  n.  (2). 
Reference.    §93. 

Townships;  condemnation  proceedings.    §97,  n.  (2). 
Trial  without  jury.     §98. 
Turnpikes. 

Land  damage  cases.    §100  (A) . 

Proceedings  to  condemn.    §100  (C). 
Name  of  proceeding.    §§48  (C) ;  130;  182  and  n.  (1). 
Scope  of  review.    §§48;  182,  n.  (2). 


732 


000  716  983 


